Updates From the Acting General Counsel and the Quorum-less National Labor Relations Board

At a Glance

• Following key personnel changes, including the removal of General Counsel Abruzzo, the NLRB — under new leadership — is reversing some Biden-era policies, signaling a shift toward more employer-friendly practices.
• The NLRB, lacking quorum, faces legal challenges on its ability to certify union elections and defend removal protections, complicating its operations and policy enforcement.

Only a few weeks after President Donald Trump removed General Counsel Jennifer Abruzzo and Member Gwynne Wilcox, the new leadership of the National Labor Relations Board (the Board) has begun to make changes to Biden-era policies, even while the Board still lacks quorum.

Trump appointed Deputy General Counsel Jessica Rutter to the acting general counsel position shortly after Abruzzo’s termination, and he removed her just as quickly from the position. On February 4, 2025, Trump then appointed William Cowen, long-serving regional director from one of the Board’s Los Angeles offices (Region 21), to the acting general counsel role.

Latest Executive Order

In addition, Trump issued another Executive Order that seeks to increase the White House’s influence over independent agencies like the Board. The Executive Order outline a plan for more oversight of these agencies’ regulations, policy development and greater involvement from the Office of Management and Budget in these agencies’ operations. Currently, the Board lacks quorum, so it cannot issue decisions or new regulations. And even if Trump had not removed Member Wilcox, there are sufficient vacancies on the Board that the president could appoint enough new members to shift the Board back in the direction it took under his first term. It is unclear how much the EO will impact the Board above the many other factors already in play.

Updates on the Board Without Quorum

After Trump removed Member Wilcox from her position in January, she sued the president and Chairman Kaplan in D.C. District Court demanding she be reinstated to her position. The administration argued that the removal protections for board members were unconstitutional, and that Wilcox’s arguments to the contrary stretched the 1935 Humphrey’s Executor decisions, which predates the existence of the NLRB by a few months, too far.

The arguments are not new, and in the last year several employers sued the Board in various federal courts arguing that the removal protections for board members and administrative law judges at the agency were unconstitutional. Last week, the Board stopped defending those protections as constitutional in at least one such challenge in a federal district court in Missouri.

CVS Health has launched a new challenge to the Board’s efforts to continue at least some operations while it lacks a quorum. The pharmacy chain faced an organizing campaign at one of its Rhode Island locations. The union (the Pharmacy Guild) won the election, but CVS filed objects and argued that the Board cannot certify the elections results while it lacks a quorum. The Board’s regulations allow regional directors to certify election results even without a quorum. The Supreme Court upheld this rule in a prior challenge.  However, CVS asserts that the Court only upheld the Board’s rule because of the now-abandoned Chevron doctrine. This challenge, if successful would not impact the outcome of the union elections but would prevent regional directors from certifying unions as the collective bargaining representative and issuing orders requiring the employer to bargain, at least until the president appoints — and the Senate confirms — additional board members.

The General Counsel’s Office

Early this month, Acting GC Cowan began pulling back several of the General Counsel memorandums issued by Abruzzo. Though these memos are not binding, they are instructions to the regional offices on what types of enforcement actions to prioritize. Many expected Cowen would rescind some these memos as a signal that he would pull back from the more aggressive enforcement actions that GC Abruzzo pursued during her tenure.

The rescinded memos include instructions on seeking expanded remedies; positions on the permissibility stay-or-pay, severance and noncompete agreements; guidance on violations that might warrant a Cemex order; labeling athletes at private universities as “employees”; standards expanding instances for seeking Section 10(j) injunctive relief; policies for handling cases involving immigrant workers; and guidance on mail ballot elections due to COVID-19.

In the case of the Cemex decision and Section 10(j) relief, Cowen indicated that the withdrawals were pending further guidance. However, a few days later, Board prosecutors in a Missouri Starbucks case requested a Cemex bargaining order. In the Starbucks case, the union lost an election 11-8, but the union had also filed unfair labor practice charges. The prosecutors post-hearing brief stated that these circumstances were exactly the context where the Board intended the Cemex remedy to apply.

This is a particularly dynamic time for change in personnel, policy and, in time, likely precedent at the NLRB.  It is essential that employers stay up to date on the changes in both the labor law regulatory and litigation environments and assess how those changes may impact your business. The team at Faegre Drinker will continue to monitor these developments.