Articles Discussing Labor Law At The Federal Level, Including Issues Under The National Labor Relations Act (NLRA).

By: President Trump Nominates New NLRB General Counsel

According to the March 24 Congressional Record, President Trump nominated Morgan Lewis labor law attorney Crystal Carey as the new National Labor Relations Board General Counsel.    

Ms. Carey has been practicing for approximately fifteen and a half years. She spent time as an attorney with the Board from November 2009 through 2018, before joining Morgan Lewis. She previously practiced in Morgan Lewis’ Philadelphia office and moved to the New York office in 2022. She was promoted to Partner five months ago. 

The NLRB GC has significant power to shape labor law policy across the country as the chief prosecutor and overseer of the NLRB Division of Advice, among other roles.   

Existing Acting NLRB GC William Cowen will likely remain in the position until Ms. Carey’s nomination is confirmed. As we learn more about Ms. Carey and as the confirmation process moves forward, we will continue to keep you updated.  

On March 6, 2025, U.S. District Judge Beryl A. Howell from the U.S. District Court for the District of Columbia ordered that Gwynn Wilcox be reinstated to the National Labor Relations Board (NLRB) and complete her five-year term, which is set to expire on August 27, 2028.

Recently selected acting GC William Cowen’s Memo 25-05 rescinds dozens of his predecessor’s expansive and novel enforcement priorities.

By: Wilcox Fired? Not So Fast

About a month ago, President Trump terminated the employment of NLRB Board Member Gwynne Wilcox. This left only two active Board members and stopped the NLRB in its tracks as it takes three members for the NLRB to have a quorum and issue decisions and make rulings.

The law is unclear whether the President has the right to summarily dismiss an NLRB Board Member. Wilcox filed a lawsuit with the District of Columbia District Court in Washington DC to fight the termination decision shortly after it was made, claiming it was a clear violation of the National Labor Relations Act.

Earlier today, Judge Berly A. Howell, who was appointed to the bench by President Obama, and was assigned the Wilcox case, granted NLRB Board Member Gwynne Wilcox’ motion for summary judgment and declared that “the termination of plaintiff Gwynne A. Wilcox was unlawful, in violation of the National Labor Relations Act and therefor null and void.” Judge Howell further declared that “Wilcox remains a member of the National Labor Relations Board” may only be removed “upon notice and hearing for neglect of duty or malfeasance in office, but for no other cause” in accordance with the National Labor Relations Act.

Wilcox’ returning to the NLRB restore the board’s three-member quorum and allow it to begin ruling on cases, and issuing injunctions and decisions. President Trump is expected to immediately seek to appeal this decision to the United States Court of Appeals for the District of Columbia and will likely seek an injunction prohibiting enforcement of Howell’s order during the pendency of the appeal. Ultimately, this case, along with other cases dealing with summarily dismissed government officials, will likely head to the United States Supreme Court for examination under that Court’s decision in Humphrey’s Executor from 1935.

Stay tuned!

By: Insight from the New NLRB General Counsel

Last week, I attended the American Bar Association’s Mid-Winter Meeting for the Committee on Development Under the Law of the NLRA in Clearwater, Florida.

William Cowen, the new National Labor Relations Board (NLRB) General Counsel, was one of the featured speakers. Of course, he could not say too much, but GC Cowen did speak for over an hour. He was more candid than most government officials, which was appreciated by the attendees, who represent both the union and management side, as well as a number of NLRB officials and employees.

Here are some of the things he reported on that I thought many blog readers might be interested in, with a bit of my personal commentary:

1. GC Cowen has only been there a few weeks, so he is still figuring things out day-to-day.
2. GC Cowen’s view is that the NLRB is an executive agency and therefore he plans to follow the agenda set by the Executive Branch and the President of the United States. This means that things should get a lot more friendly for employers facing NLRB issues in the next four years.
3. Approximately 30 of approximately 1300 NLRB employees took the government’s recent deferred resignation program. GC Cowen does not feel that will have a major impact.
4. According to GC Cowen, there has been no detailed analysis of the NLRB budget yet. The Board does not expect to get any increase in funding. From GC Cowen’s perspective, flat funding would be ideal, but he has no sense of where it is going.
   • Please note that this statement was made prior to the announcement late last week that all federal agencies have to submit plans for budget cuts by March 13, so I guess we can predict now where it is going. I expect that the NLRB will have material budget cuts going forward causing even further backlogs.
5. GC Cowen is a big proponent of settlement and plans to re-empower Regional Directors to handle settlements.
6. Currently, according to GC Cowen, every Region is overworked and if the budget takes a major hit, it is only going to get worse.
7. GC Cowen is going to take steps to minimize unfair labor practice (ULP) processing delays. From my perspective, this is going to be difficult to accomplish, if the Board is not given sufficient money in their operating budget and/or if material cuts in Board employees is implemented by DOGE.
8. GC Cowen’s personal view is that NLRA preemption does not allow states to regulate areas that the NLRB regulates (for example captive audience meetings). It is unclear whether the NLRB will step in to assist the Cal Chamber and California Restaurant Association lawsuit challenging the California Captive Audience Meeting ban set forth in SB 399. GC Cowen certainly did not go that far.

The General Counsel of the NLRB is vested with significant power as the chief prosecutor of the agency. With the NLRB currently lacking a quorum, there are additional delegations of authority to the General Counsel related to operations, issuing of 10(j) injunctions and other functions. Over the next few months, we will learn a lot more about how GC Cowen will operate and how it will influence the landscape for United States labor law in the next four years and beyond.

On February 14, 2025, National Labor Relations Board Acting General Counsel (“GC”) William Cowen issued Memorandum 25-05, which rescinded dozens of policy memos issued by his predecessor, Jennifer Abruzzo, during the Biden Administration.