As expected, the new administration is making big changes at the National Labor Relations Board. These changes will affect most private-sector employers. The NLRB enforces the National Labor Relations Act. The NLRA gives employees the right to organize, form or join labor unions, and collectively bargain with their employers. The NLRA also prohibits unfair labor practices by employers and unions. But some employers do not realize that the NLRA applies to both union and non-union employers. The NLRA protects the right of all private-sector employees to engage in “concerted activity” to address their pay and working conditions. Concerted activity includes actions taken by two or more employees working together to improve their wages, hours or working conditions. So, for example, concerted activity could include actions such as discussing pay raises with coworkers or a group meeting between employees and their manager to address safety issues or scheduling. The NLRB acts against employers who terminate or retaliate against employees who engage in protected activities. So, what changes currently impact employers? First, the composition of the NLRB is in turmoil. On Jan. 27, President Trump, as expected, fired the NLRB General Counsel Jennifer Abruzzo. The general counsel acts as the NLRB’s chief prosecutor and oversees the NLRB Division of Advice, thus significantly shaping federal labor policy. The general counsel operates independently of the board, so their prosecutorial and policy decisions are not subject to board approval. The President holds the authority to appoint or remove the general counsel. President Biden similarly removed General Counsel Peter Robb shortly after taking office in January 2021. But for the first time in history, the president removed a sitting board member, too. President Trump removed Gwynne Wilcox, whose term was not set to expire until August 2028. This move temporarily brought board activity to a screeching halt, because it left the board with only two sitting members. The NLRB is composed of five members and needs a quorum of at least three members to decide labor cases. But the NLRA provides that the president has the power to remove board members only “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” Wilcox challenged her removal. A federal district court initially sided with Wilcox and ordered her immediate reinstatement. But the Court of Appeals for the District of Columbia Circuit granted the Trump administration an injunction staying her reinstatement. Again, the board ceased work. But on April 7, the full DC Circuit Court held that Congress may limit the president’s removal authority and ordered Wilcox’s reinstatement. So, for now, the NLRB is back in business. But this saga is far from over. The DC Circuit only decided that the stay was not appropriate. The Circuit Court has not yet decided the case on the merits, which it probably will not do for another month or two. And whoever loses this decision will very likely appeal this case to the U.S. Supreme Court. Meanwhile, on Feb. 3, President Trump appointed William B. Cowen acting general counsel for the NLRB. And on Feb. 14, Cowen issued General Counsel Memorandum GC 25-05, rescinding 18 previous general counsel memos and rescinding several more pending further review. This rolls back General Counsel Abruzzo’s agenda, much of which was highly unfavorable for employers, and sets the stage for the current administration to reshape the federal labor agenda. Memorandums that Cowen rescinded include those: Holding that proffering or enforcing noncompete agreements in employment contracts or severance agreements violates the NLRA. Holding that many college athletes are employees under the NLRA; Providing guidance on the NLRB’s 2023 decision adopting a union recognition standard that was more favorable to unions. Allowing mail-in-ballot union elections, which were authorized during the COVID-19 federal public health emergency. The General Counsel also rescinded Memorandums GC 23-05 and 23-08, which clarified the board’s February 2023 McLaren Macomb decision. McLaren Macomb held that severance agreement provisions, including confidentiality, nondisclosure and nondisparagement clauses, could violate the NLRA if proffered, maintained or enforced, even if the agreement was signed before the date of the decision. GC 23-05 outlined the kinds of severance agreement provisions that violated the NLRA. Cowen’s GC 25-05 removes the presumption that noncompete agreements violate the NLRA. Memorandum GC 25-05 also rescinds GC 21-04, which required the NLRB’s regional offices to submit certain cases to the Division of Advice, which as mentioned above, General Counsel Abruzzo oversaw. GC 21-04 was widely viewed as the general counsel’s attempt to uniformly overturn legal decisions favoring employers. What does the future hold? Certainly, the new Board will issue decisions overturning decisions such as McLaren Macomb, summarized above, and other decisions seen as unfavorable to employer interests. And the Senate has yet to approve President Trump’s nominee for general counsel, management and employer side attorney Crystal Carey. If confirmed by the Senate, Carey will replace Acting General Counsel Cowen. Carey worked at the NLRB for eight years, first as an attorney under the general counsel and then as the board’s senior counsel during both the Obama and first Trump administrations. She has vocally criticized Biden administration board decisions limiting employer rights under the NLRA. Federal labor policy and law constantly change from one administration to another, creating uncertainty and confusion for employers. The Employers Council makes available to its members resources on the NLRA and union questions. And Employers Council consulting and enterprise-level members may speak directly with our employment attorneys at any time for advice on properly applying the NLRA’s employee protections. And the Employers Council’s labor attorneys are available to assist and represent members on organized labor matters, including union avoidance, union organization, collective bargaining and unfair labor practices.