National Labor Relations Act

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As we have previously reported, the National Labor Relations Board (“NLRB” or the “Board”) is likely to undergo substantial policy changes during President Trump’s second term. This process began when President Trump took the unprecedented step of firing former Board Member Gwynn Wilcox before her five-year term had expired and continued as William B. Cowen, the Acting General Counsel (“AGC”) who was appointed to replace fired Biden-era GC Jennifer Abruzzo, rescinded many of the more notable guidance memoranda Abruzzo issued during her term. The General Counsel is responsible for the investigation and prosecution of unfair labor practice cases and supervising the regional NLRB offices, and while the positions advanced by the General Counsel’s Office are not binding upon the Board, they nevertheless signal a shift in prosecutorial priorities and often portend eventual adoption of these positions by the Board in a future case.Continue Reading NLRB Acting General Counsel Cowen Directs Regions to Prosecute Secret Recordings of Collective Bargaining Sessions as Per Se Violations of the NLRA

With mounting uncertainty about the lack of a quorum and near term future of the National Labor Relations Board (the “NLRB” or the “Board”), New York State legislators are attempting to usurp the powers delegated to the Board by Congress. New York lawmakers have passed legislation that, if signed by Governor Kathy Hochul, would grant state agencies the power to enforce federal labor law. Employers could face significant challenges if this bill becomes law. Most concerning, employers could have a collective bargaining agreement imposed on them by an arbitrator.Continue Reading New York State Looks to Take Over Labor Law Enforcement Amidst Uncertainty at the NLRB

On Tuesday May 20, 2025, U.S. District Judge for the District of Oregon, Michael H. Simon issued a decision in Casala LLC, d/b/a Bubble’s Hash and Rec Rehab Consulting LLC, d/b/a Ascend Dispensary v. Tina Kotek, in her official capacity as Governor of the State of Oregon, et al., Case No. 3:25-cv-244-SI (D.Or. May 20, 2025), striking down Oregon’s United for Cannabis Workers Act and holding that the law is preempted by the National Labor Relations Act (“NLRA”) in violation of the Supremacy Clause and the First Amendment of the United States Constitution.Continue Reading Oregon Federal Judge Strikes Down State Law Requiring Labor Peace Agreements for Cannabis Licensure and Certification – OLCC Will No Longer Enforce State Requirement

On May 22, 2025, the U.S. Supreme Court ruled National Labor Relations Board (“NLRB”) Member Gwynne Wilcox cannot return to work while she challenges President Donald Trump’s decision to terminate her without cause. The latest decision comes in a long line of court decisions since Trump terminated Wilcox in January 2025. The central issue revolves around 90-year-old precedent Humphrey’s Executor v. U.S., 295 U.S. 602 (1935) limiting the President’s power to fire employees at independent agencies. Continue Reading Supreme Court Decides Against Reinstating Wilcox to NLRB as They Rule on Her Termination – NLRB Remains Without a Quorum

National Labor Relations Board (“NLRB”) Member Gwynne Wilcox is out of a job for the third time in less than four months. Continue Reading Chief Justice Roberts Allows Trump to Remove Wilcox from NLRB as the Supreme Court Considers the Challenge to Her Dismissal

On April 7, 2025, the U.S. Court of Appeals for the District of Columbia held that President Trump’s termination of National Labor Relations Board (“NLRB” or the “Board”) Member Gwynne Wilcox was unlawful. The decision marks the latest round in litigation tug-of-war, reversing a decision reached by a three-judge panel for the D.C. Circuit, and returning to a decision reached by U.S. District Judge Beryl A. Howell on March 6, 2025. For an in-depth summary of the facts and the constitutional issues at stake, please refer to our initial reports on the district court’s ruling here, and subsequent reversal by the three-judge panel here. Continue Reading Full D.C. Circuit Court Reinstates Wilcox to the NLRB

A three-judge panel for the U.S. Court of Appeals issued a favorable ruling for President Trump, staying a recent district court decision that ruled his termination of National Labor Relations Board (“NLRB” or the “Board”) Member Gwynne Wilcox was unlawful. Thus, it appears that the Board again is left without statutory quorum, which under the National Labor Relations Act (“NLRA”) requires at least three members.Continue Reading Split D.C. Circuit Panel Rules Trump Can Remove Wilcox from NLRB – NLRB to Stay Without a Quorum

On March 6, 2025, U.S. District Court Judge Beryl Howell held that Gwynne Wilcox, a former member of the National Labor Relations Board (“NLRB” or the “Board”) was “illegally” fired from her job.[1] The court ordered the Board’s current chair to restore her access to the Board and let her serve out the remainder of her five-year term. The Trump administration promptly appealed the decision and is seeking an immediate stay from a federal appeals court.[2] However, in the meantime, Wilcox’s return will give the Board three active members. Thus, for now, it appears that the Board again has a statutory quorum under the National Labor Relations Act (“NLRA” or the “Act”) and can resume operating as normal.Continue Reading Federal District Court Reverses Firing of NLRB Member Wilcox – NLRB Returns to Statutory Quorum

As discussed in our recent article, the introduction of SB 399 in California (approved and added as California Labor Code section 1137) sparked significant discussion and concern among California employers with union employees. The legislation, which became effective January 1, 2025, restricts so-called “captive audience meetings” by prohibiting employers from discharging or disciplining employees for refusing to attend mandatory employer-sponsored meetings. Many employers believe the law unnecessarily restrains their ability to communicate effectively and transparently with employees about important issues.Continue Reading Mandatory Captive Rules in Limbo for California Employers – 2 Federal Lawsuits Challenge SB 399 and Looming Issue Before the NLRB

On February 14, 2025, the Acting General Counsel of the National Labor Relations Board (“NLRB”) William B. Cowen issued his first General Counsel Memorandum (“GC Memo”) GC 25-05 rescinding nearly all of the Biden administration General Counsel’s substantive prosecutorial guidance memos, which furthered a pro-union and pro-employee agenda. While these memoranda do not have the weight of law or regulation, they do set out the agency’s priorities and key interpretations of the National Labor Relations Act (“NLRA”).Continue Reading Acting General Counsel of NLRB Issues First GC Memorandum, Rescinding Controversial Pro-Labor Memoranda

As we have previously reported, from the time President Biden took office, the National Labor Relations Board (“NLRB” or the “Board”) began systematically reversing Trump-era policies, and shifting toward increasingly more pro-union and pro-employee policies. These efforts have not been slowed by the impending end of the Biden administration. On December 10, 2024, the NLRB overruled a Trump-era Board decision and returned to an employee- and union-friendly standard for determining when unilateral workplace changes made by an employer are unlawful.Continue Reading NLRB Returns to Union-Friendly “Clear and Unmistakable Waiver” Standard