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The Bargaining Table

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The National Labor Relations Board (NLRB or Board) is back. With President Donald Trump’s picks restoring a Republican majority and the installation of a seemingly management-friendly general counsel (GC), the Board is poised to review Biden-era precedent. Employers should expect significant changes coming out of this Board as Trump strengthens his hold over the agency.

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In January 2025, Trump removed NLRB member Gwynne Wilcox, leaving only two members, Democrat David M. Prouty and Republican Marvin E. Kaplan, whom Trump named chairman. Kaplan’s term came to an end in August 2025 and Wilcox is still challenging her removal in court. With only one member, the five-member Board lacked both a quorum and authority to issue decisions in unfair labor practice (ULP) cases and disputes over union election petitions. The absence of a quorum left the NLRB unable to change Biden-era, employee-friendly precedent, but it also delayed rulings on pending cases that could have been unfavorable to employers.

Now the Board sits at a 2-1 Republican advantage, with the appointment of new members Scott Mayer and James Murphy. Mayer, a Philadelphia-based attorney who served as chief labor counsel for Boeing. stands as the outsider appointee, a Philadelphia-based lawyer who served as chief labor counsel for Boeing, stands as the insider appointee, having had a long career at the NLRB serving as chief counsel to various Republican Board members, including, most recently, Kaplan. Murphy’s confirmation was smooth, but Mayer faced delays due to a labor dispute at his employer and pushback from Sen. Josh Hawley. Ultimately, both were confirmed and have begun their terms.

Trump also reshaped the Board’s prosecutorial arm. On Jan. 27, 2025, Trump fired the chief prosecutor of the Board under President Joe Biden, Jennifer Abruzzo, and Abruzzo’s short-lived replacement, Jessica Rutter. Abruzzo had issued aggressive, union-friendly memos, though many lacked binding effect without NLRB rulings. In place of Abruzzo and Rutter, Trump appointed William Cowen as acting GC. Cowen quickly rescinded Abruzzo’s directives, including restrictions on severance and noncompete agreements. While Abruzzo could not always find the right case to alter labor law precedent, she was able to change some areas that remain in effect today. Now, Crystal Carey, a former partner at a large nationwide management-side firm, is poised to take the reins as the permanent GC and expected to seek reversal of those changes.

The removal of Abruzzo was anticipated, but Board member Wilcox’s dismissal came as a surprise. Unlike GCs who serve at the president’s discretion, Board members historically could be removed only “for cause,” pursuant to Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935). Now, that precedent is being reexamined in connection with the litigation over Wilcox’s removal. While a D.C. district court initially reinstated Wilcox, a U.S. Court of Appeals for the D.C. Circuit panel reversed and upheld her firing in the consolidated case Harris v. Bessent, No. 25-5037, 2025 WL 3496737 (D.C. Cir. Dec. 5, 2025). The panel stated that because the NLRB members wielded “substantial executive powers,” the president could not be restricted from firing them.

This ruling follows Supreme Court precedent in Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 218 (2020), which stated that Congress could not limit a president’s ability to terminate agency officers who wield substantial executive powers. Essentially, if an agency’s powers include important executive functions, such as substantial rulemaking or adjudicatory powers, the president can remove that agency’s officers.

This development coincides with a Supreme Court challenge to the for-cause removal standard in Humphrey’s Executor now under review in Trump v. Slaughter, 222 L. Ed. 2d 1233 (Sept. 22, 2025). In Slaughter, Trump is seeking to uphold his termination of Commissioner Rebecca Slaughter from the Federal Trade Commission, the agency about which Humphrey’s Executor was initially decided. If Trump is successful, he could remove a government officer without cause regardless of whether the agency wields substantial executive powers.

Now empowered with a quorum and new GC, the Board can start getting back to business. Carey can start by challenging Biden-era precedent such as (1) overturning the Cemex election procedure, (2) removing the ban on captive audience meetings, and (3) reinstating an employer’s ability to make predictions during an election campaign.

In Cemex Construction Materials Pacific, LLC, 372 N.L.R.B. No. 130 (2023), the Board held that instead of a regular secret ballot election, a union can request voluntary recognition if it shows a majority of employees have signed union authorization cards. If the employer refuses, it must request a secret ballot election within two weeks. If the employer fails to do so, the NLRB can issue a bargaining order against the employer, forcing recognition of the union. In addition, if an employer is accused of committing even a single technical ULP during an election campaign, the NLRB can issue a bargaining order.

he Cemex decision is made even more burdensome on employers, as the NLRB has recently banned captive audience meetings in its decision in Amazon.com Services LLC., 373 N.L.R.B. No. 136 (2024). Mandatory meetings have long been a useful tool by employers in union elections. By banning these meetings, employers could be subject to a bargaining order for having one mandatory meeting to discuss unionization.

During election campaigns, employers used to discuss what might happen if employees were unionized, such as losing the ability to address issues on an individual level. In Siren Retail Corp. d/b/a Starbucks, 373 N.L.R.B. No. 135 (2024), the NLRB banned this type of language, stating any predictions must have some “objective fact” behind them. Otherwise, the Board will be consider this a ULP during an election, which can result in a bargaining order. Previously, the Board would not police such campaign statements because the relationship between employer and employee would necessarily change once employees chose union representation.

These decisions will likely be overruled by the new Trump NLRB. However, Carey will have to bring a complaint accusing a company or union of violating the law to get a Board ruling. Whether an employer wants to test the new Board’s appetite for change will depend on its resources, risk aversion and vulnerability to public backlash.

What Should Employers Do with This New Board?

While changes will not happen overnight, the new Board members and GC signal a clear return to traditional interpretations of labor law. Employers should closely monitor upcoming decisions and assess their risk tolerance before testing the new NLRB’s approach, as legal challenges and public scrutiny remain key considerations in this evolving landscape. The BakerHostetler Labor Relations team will continue to closely monitor the new Board and its changing effects on employers.

They’re Back! National Labor Relations Board Regains Quorum and Installs New General Counsel