Two recent Fifth and Sixth Circuit appellate decisions have deepened a circuit split over the authority of the National Labor Relations Board (NLRB) to force employers to pay for the foreseeable harms stemming from unfair labor practices—a broad and largely unprecedented financial remedy the NLRB asserted it could order in
Articles Discussing The National Labor Relations Board (NLRB).
Many States’ Employee-Friendly Labor Laws Take Effect as NLRB Remains Quorum-Less
TakeawaysRhode Island became the 13th state banning mandatory “captive audience meetings.”Oregon and Washington will offer unemployment benefits to qualified striking workers starting 01.01.26.New York and other states are seeking to regulate private labor disputes while the Board lacks a quorum, raising federal preemption concerns.Related links
Fifth Circuit Upholds Injunction Because NLRB Structure Is Likely Unconstitutional
Fifth Circuit Upholds Injunction Because NLRB Structure Is Likely Unconstitutional
On August 19, 2025, in Space Exploration Tech. Corp. v. National Labor Relations Board, et al., a panel of the U.S. Court of Appeals for the Fifth Circuit upheld preliminary injunctions that had halted NLRB complaint proceedings. The court held
Fifth Circuit Finds NLRB’s Structure Likely Unconstitutional: What Employers Need to Know
Acting NLRB General Counsel Issues Guidance for Salting Cases
Acting NLRB General Counsel Issues Guidance for Salting Cases
On July 24, National Labor Relations Board Acting General Counsel (AGC) William B. Cowen issued Memorandum GC 25-08 (the “Salting Memo”), which provides case processing guidance to the Regions for investigating refusal-to-hire and refusal-to-consider-for-hire cases that arise in the “salting” context.
What
President Trump Nominates Two for NLRB, Potentially Restoring Quorum
On July 17, 2025, President Donald Trump nominated a pair of labor lawyers to fill two of the three vacant seats on the National Labor Relations Board (NLRB) and potentially provide the NLRB with a quorum necessary to issue precedential decisions.
CDF Webinar: NLRB Happenings & Republican Sponsored Pro-Union Legislation
Join CDF Partners Mark S. Spring and Tashayla Billington for a focused webinar on key NLRB developments since January, including the impact to employers from past and future Board Member composition changes, NLRB General Counsel appointments, new NLRB GC Memorandum from the Acting NLRB GC, and NLRB budget constraints.
Supreme Court Keeps Wilcox on the Sidelines – NLRB remains Without a Quorum
On May 22, 2025, the Supreme Court granted President Trump’s emergency application to stay the D.C. Circuit Court order that reinstated NLRB Member Wilcox.
Curb Your Remedial Enthusiasm – NLRB Acting General Counsel Offers Remedial Relief to Employers
Curb Your Remedial Enthusiasm – NLRB Acting General Counsel Offers Remedial Relief to Employers
On May 16, National Labor Relations Board Acting General Counsel William Cowen issued Memorandum GC-25-06, calling for an efficient, practical approach to NLRB settlement agreements.
tgelbman@littler.com Fri, 05/23/2025 – 15:49
Supreme Court Stays Orders Reinstating NLRB, MSPB Members, Pending Appeal
On May 22, 2025, the Supreme Court of the United States accepted the Trump administration’s argument to keep former National Labor Relations Board (NLRB) member Gwynne Wilcox and former Merit Systems Protection Board (MSPB) member Cathy Harris off their respective boards during the pendency of their consolidated legal action alleging
NLRB Releases New Standards for Remedies in Settlements
The National Labor Relations Board (NLRB) recently announced a new policy to loosen the standards for applying remedies in settlement agreements. This policy shift might make it easier and faster for employers to reach settlements with employees and unions.
Potential Shake-Up Alert: Can the President Fire The Head of NLRB Without Cause?
Nearly a century ago, the U.S. Supreme Court determined the scope of presidential powers over independent federal agencies in Humphrey’s Executor v. United States, 295 U.S. 602 (1935). Today, the Supreme Court may soon revisit its decision to determine whether the president has the power to terminate the head of the NLRB or some other agencies, without cause.
Supreme Court Temporarily Stays Reinstatement of NLRB Member Wilcox
National Labor Relations Board (NLRB) Member Gwynne A. Wilcox is out of a job, again, for the third time in less than four months.
Bouncing Back and Forth: Wilcox’s NLRB Status Tilts Once More
By: Bouncing Back and Forth: Wilcox’s NLRB Status Tilts Once More
NLRB member Gwynne A. Wilcox’s status with the National Labor Relations Board (“NLRB” or “Board”) continues to move back and forth faster than a pinball on tilt.
Only Monday morning, after a series of back and forth rulings that we chronicled here earlier this week, the Federal Court of Appeals for the DC Circuit issued its en banc decision holding that Congress can limit the President’s removal authority and ordering that the prior DC Circuit’s three judge panel’s order that stayed Judge Howell’s summary judgement order reinstating Member Wilcox to the Board be vacated. This allowed Wilcox to return to work and gave the NLRB its three-member quorum again. Wilcox immediately returned to work and the NLRB began issuing decisions.
In February, the Trump Administration used a procedure rarely utilized to apply to Chief Judge Roberts: (1) have the Court take up the case immediately and (2) vacate the District Court Order, reinstating Wilcox to the Board. The application was over 250 pages. Roberts issued a preliminary order granting the application to vacate the original District Court order reinstating Wilcox to the Board pending further order of the Supreme Court and ordered Member Wilcox to file a response to the entire application by Tuesday.
The NLRB is again without a quorum and Member Wilcox is again without a job.
Where Do Things Go From Here?
The Supreme Court has yet to rule whether it will take up the entire case immediately or allow the proceedings in the DC Circuit to continue first. It appears quite likely that SCOTUS will rule on this termination, but it is not clear whether proceedings will proceed before the Court of Appeals first. In any case, things will likely remain status quo until at least next week when Member Wilcox files her response.
With the NLRB being without a quorum, there will be a halt to NLRB decisions, and many of the activities of the Board will grind to a halt or move quite slowly.
Much like a pinball ricocheting between bumpers, Member Wilcox’s status—and the NLRB’s ability to function—continues to bounce unpredictably from one decision to the next. For now, the ball is with the Supreme Court. We will continue watching and reporting on where it lands next.
The Labor Law Ping-Pong Continues: Federal Appeals Court Allows NLRB Member Wilcox to Return to Work
The Labor Law Ping-Pong Continues: Federal Appeals Court Allows NLRB Member Wilcox to Return to Work
The U.S. Court of Appeals for the D.C. Circuit has ruled that National Labor Relations Board Member Gwynne Wilcox will return to work while she challenges her removal. This latest decision reverses a prior