Media Center

January 27, 2026
Publications

By Adam L. Santucci, Micah T. Saul, and Robert J. McAvoy

Introduction

In 2025, the National Labor Relations Board (“Board”) was defined by a lack of leadership and activity, as a lack of quorum for most of the year effectively froze the Board’s ability to issue decisions. Still, the guidance issued by the Board’s General Counsel and appellate decisions provided some developments for labor practitioners to follow. The year ended with a significant turnaround as the Senate confirmed new members, restoring the quorum in December and allowing the Board to resume normal functions, setting the stage for potential policy shifts in 2026 after a “lost year” for employer-side changes.

The Board issued only 86 decisions in contested cases (51 decisions in unfair labor practice cases and 35 decisions in representation cases), which was a decrease of 67% compared to 2024. The Regional Offices issued 704 complaints. The median age of pending cases at the end of the fiscal year was 245 days, which is well beyond the Board’s goal of 180 days or less. The Board did not engage in rulemaking in 2025.

In 2025, 19,754 unfair labor practice charges were filed with the Board. The Board also received 2,743 representation petitions, including 2,633 petitions to conduct secret-ballot elections. Each of these figures represents a slight decrease from 2024.

The Board recovered over $64 million on behalf of employees, which was an increase over 2024, and secured 854 offers of reinstatement for employees.

Here, we summarize the key labor law developments from 2025 and briefly highlight some changes we may see in 2026.

The removal of Member Wilcox and the resulting lack of quorum

After President Trump took office in January, he promptly removed Member Gwynne Wilcox from the Board. This was an unprecedented decision that had and will have ramifications on many different levels. With the removal, the Board was short of the three-member quorum it requires to issue decisions for most of 2025.

In the spring, Member Wilcox’s termination was both reversed and reinstated at multiple levels of appeal before ultimately being upheld by the Supreme Court in May. In addition, Chairman Marvin Kaplan’s term expired in the summer. Meanwhile, President Trump did not nominate new members until July. Those confirmation hearings took place in October, and the new board members were confirmed, restoring quorum, on December 18, 2025.

The new Board is expected to be more employer-friendly, as compared to its counterpart under the Biden administration.

General counsel advice memoranda

President Trump appointed Acting General Counsel William B. Cowen on February 3, 2025. Acting GC Cowen issued several Guidance Memoranda throughout the year, several of which rolled back the aggressive, pro-labor agenda of the Board’s previous General Counsel, Jennifer Abruzzo. Here, we summarize a few of the key Memoranda from last year.

GC 25-05

Only 11 days into his tenure as Acting General Counsel, Mr. Cowen issued a sweeping memorandum on February 14, 2025 (GC 25-05), permanently rescinding 15 Biden-era GC memos outright. Among the most impactful of the now-rescinded memoranda are:

• GC 23-05: In its 2023 McLaren Macomb decision, the Board held employers may not offer employees severance agreements requiring a broad waiver of rights under the National Labor Relations Act (most commonly through non-disparagement and confidentiality clauses), regardless of employees’ union affiliation. Soon thereafter, then-General Counsel Abruzzo issued GC 23-05 clarifying that the Board would apply this case retroactively to severance agreements signed before McClaren Macomb.
• GC 23-08: This memorandum endorsed Board action against employers who sought to use non-compete agreements with only narrow exceptions.
• GC 25-02: One of Former General Counsel Abruzzo’s final memoranda advocated Board action against employers who imposed so-called “stay-or-pay” provisions on employees, again regardless of union affiliation. GC 25-02 targeted educational repayment contracts, quit fees, liquidated damages clauses in employment agreements, sign-on bonuses, and other monetary payments tied to a “stay period” during which employees faced financial repercussions for separating from employment.

Mr. Cowen’s first memorandum also rescinded 13 other Biden-era GC memos pending further assessment. Some of the significant memoranda rescinded pending further evaluation include:

• GC 21-05: This memorandum urged Board attorneys to seek injunctive relief to protect employees’ rights under Section 7 of the Act. Specific recommended actions included aggressively seeking bargaining orders, reinstatement of employees allegedly terminated in violation of the Act, and challenging employers’ withdrawal of union recognition.
• GC 21-06: In this memo, Former General Counsel Abruzzo endorsed Board regional offices seeking a broad range of make-whole remedies in unfair labor practice cases. For example, she recommended efforts to obtain consequential damages stemming from an employee’s loss of pay and benefits, such as credit card late fees, home loss due to foreclosure/eviction, increased health benefit costs, and loss of vehicles due to a failure to make timely car payments following an allegedly unlawful termination under the Act. The also-rescinded GC 21-07 urged Board attorneys to seek such damages in settlement agreements under the Act.
• GC 25-04: General Counsel Abruzzo urged cooperation and coordination between the Board and the Equal Employment Opportunity Commission (EEOC) when employee complaints to one agency overlap with the other’s enforcement prerogatives.

Three additional Biden-era GC memoranda were rescinded as irrelevant due to Board decisions (GC 22-04 regarding employee rights to refrain from captive audience meetings), to restore Board policy in place during President Trump’s first term (GC 23-03 rescinded to reinstate GC 18-01 which authorizes Board staff to make certain disclosures in litigation matters), and due to the end of the COVID-19 pandemic (GC 21-01 prioritizing mail ballot procedures in union-related elections). In total, 31 of the 34 memoranda issued during President Biden’s term were rescinded less than one month into President Trump’s current term, signaling a favorable shift in Board policy toward employers.

GC 25-06

Acting General Counsel Cowen issued GC 25-06 on May 16, 2025, formalizing a significant shift in Board-facilitated settlement priorities. The memorandum instructs Regional Offices to refrain from automatically seeking non-monetary remedies (such as the consequential damages urged by the now-rescinded GC 21-06) in settlement negotiations. Instead, Regional Offices are advised to limit efforts to obtain these remedies to “cases involving widespread, egregious, or severe misconduct.” Absent significant violations of the Act, employers should not expect the Board to pursue non-monetary remedies during settlement negotiations for pending cases.

GC 25-07

This June 25, 2025, memorandum instructs Board Regional Offices to consider the surreptitious recording of collective bargaining sessions to be a per se violation of the Act. Under this memo, employers and unions alike risk consequences from the Board should either party secretly record their collective bargaining meetings.

GC 25-08

Salting is a tactic employed by labor organizations in which a union-affiliated individual (known as a “salt”) applies to work for an employer whose workforce is not unionized. Salts often make their union affiliation known during the hiring process. Upon hire, the salt seeks to organize the employer’s workforce from within. They often point out “unfair” working conditions and may attempt to provoke the employer into committing unfair labor practices (for example, disciplining the salt who is openly attempting to unionize the workforce). When a salt is disciplined, they or the union often file unfair labor practice charges against the employer to advance the union’s organizing efforts. In many instances, salts continue to be paid by the union while also working for the target employer.

Sometimes, employers decline to hire a union salt. When that occurs, the salt and/or their affiliated union often file an unfair labor practice charge alleging that the employer refused to hire the salt because of anti-union animus. In July 2025, GC 25-08 was issued to Regional Offices with guidance on investigating such refusal-to-hire charges.

The memorandum reminds Regional Offices that Board precedent requires the Board to satisfy four elements to establish a violation of the Act in salting cases:

• The employer was hiring or had concrete plans to hire.
• The applicant (i.e., salt) had experience or training relevant to the job, or that the employer did not adhere to the job requirements.
• Anti-union animus contributed to the decision not to hire the applicant.
• The applicant is genuinely interested in seeking to establish an employment relationship with the employer.

GC 25-08 focuses heavily on the final element, which is whether the applicant has a genuine interest in working for the employer. Acting GC Cowen directs that “if the Region concludes that an application was not submitted or authorized, or that the alleged discriminatee lacks a genuine interest in employment, the Region should dismiss the allegation, absent withdrawal, and refrain from conducting further investigation of the allegation or soliciting employer evidence regarding the matter.”

In short, the Board will carefully scrutinize whether a salt pursued employment just to organize the employer’s workforce, or whether they had a true interest in working for the employer. Salts who lack a genuine interest in the job they applied for will have a much more difficult time obtaining relief from the Board.

A summary of the board’s significant decisions

As noted, the first year of the Board under the second Trump Administration was not very active. There was little decision-making activity by the Board, and none of the decisions issued in 2025 were of significant value to employers.

Board decisions on appeal

Although the Board was not very active, the appellate courts had plenty of labor cases to mull over in 2025. Over the course of 2025, federal appellate courts issued impactful decisions on cases that originated before the Board, including a case that addressed the constitutional validity of the Board itself. A summary of several of these decisions is below.

5^th Circuit rules that National Labor Relations Act likely contains unconstitutional provisions and halts board activity in the circuit

In 2025, the Fifth Circuit Court of Appeals held that the statutory removal protections for Board members and administrative law judges of the Board are likely unconstitutional under separation-of-powers principles. The Court determined that these protections deprive the President of the necessary level of control over executive branch officers. Based on that determination, the Court affirmed the district courts’ granting of a preliminary injunction, which halted the Board’s proceedings in several cases. The Court determined that by facing “unconstitutional agency authority[,]” the employers suffered irreparable harm.

The decision had the immediate impact of providing employers facing Board proceedings in the Fifth Circuit, which includes Louisiana, Mississippi, and Texas, with the option of petitioning for similar relief. Notably, the decision creates a circuit split with the Tenth, Ninth (more on that below), Sixth, and Second Circuits, which have held that aggrieved parties must show that the unconstitutional removal provision interfered with the underlying proceedings in order to obtain injunctive relief. The circuit split may prompt the Supreme Court to consider the matter, which could have a nationwide impact on the Board’s enforcement authority so long as the statutory removal protections remain in place. This could also result in the President having the authority to unilaterally fire Board members and administrative law judges (ALJs), along with officials in other agencies who currently enjoy similar protections.

When it recently ruled that Board Member Gwynne Wilcox could not return to her position pending her legal challenges to her termination, the Supreme Court signaled an inclination to find the removal protections unconstitutional if presented with the issue. In addition to the recent Fifth Circuit decision, Wilcox’s appeal in the D.C. Circuit is a candidate for the case on this issue that ultimately reaches the Supreme Court.

Employers presently involved in Board matters should be aware of the potential impact these developments may have on their cases.

9^th Circuit rules that the National Labor Relations Board’s authority and structure are constitutional

In October of 2025, the Ninth Circuit Court of Appeals ruled on Nat’l Labor Relations Bd. v. North Mountain Foothills Apartments LLC. There, the employer argued that the Board’s authority and structure violated the United States Constitution in several ways, including: the protections from removal for ALJs who are protected from presidential authority to remove them; that administrative adjudication violates the Seventh Amendment by depriving employers of their right to a jury trial; the Board’s dual investigative and adjudicative roles violate the right to due process because the same entity is investigating and ruling on alleged violations of the law.

The Ninth Circuit rejected each of the employer’s arguments. As to ALJs’ statutory removal protections, the Ninth Circuit reasoned that the Constitution does not require that the president be allowed to remove ALJs at-will. The Court pointed to a 1935 Supreme Court holding that Congress has authority to limit presidential removal power relating to “principal officers” in federal agencies with functions similar to those of the Board.

In rejecting the employer’s Seventh Amendment argument, the Ninth Circuit similarly relied on eighty-year-old Supreme Court precedent. It explained that a 1938 Supreme Court holding found that Board proceedings are “unknown to common law,” and reasoned that this means that such proceedings carry no right to trial by jury.

Finally, the Ninth Circuit rejected the employer’s due process challenge to the Board’s authority, noting that the Board’s General Counsel is responsible for investigating unfair labor practice claims, and that the Board’s ALJs adjudicate them. Thus, while both the General Counsel and ALJs work under the umbrella of the Board, investigative and adjudicative functions are performed by different individuals.

3^rd Circuit rules that federal courts lack jurisdiction to issue injunctions against board proceedings

On December 3, 2025, the Third Circuit held that federal courts cannot enjoin Board proceedings, even if the requested injunction is based on a constitutional challenge to the Board’s authority and structure. In Spring Creek Rehabilitation & Nursing Center LLC v. Nat’l Labor Relations Bd., the employer sought to enjoin the Board’s ability to compel it to appear before an ALJ. As argued by other employers before the Fifth and Ninth Circuits, the employer asserted that ALJs’ removal protections are unconstitutional and, therefore, require employers to appear before them, which would cause irreparable harm.

The Board countered that the Norris-Laguardia Act bars federal courts from issuing injunctions in cases “involving or growing out of a labor dispute,” with limited exceptions not applicable to the case at hand. The Third Circuit agreed with the Board’s position and declined to issue the requested injunction.

Unlike the Fifth and Ninth Circuits, the Third Circuit did not opine on the employer’s constitutional challenges to the Board’s structure and authority. By finding that it had no jurisdiction over the dispute under the Norris-LaGuardia Act, the Third Circuit had no reason to address those challenges before the Board disposed of the case pending before it.

The fact that three Circuit Courts of Appeals have taken such conflicting views on constitutional challenges to the Board’s authority and structure in 2025 strongly suggests that the Supreme Court will resolve this dispute sooner rather than later.

5^th Circuit decision deepens circuit split regarding NLRB’s expanded remedies

Under the Biden Administration, the Board was aggressive in expanding remedies available to those allegedly impacted by unfair labor practice charges. On October 31, 2025, the Fifth Circuit Court of Appeals held that certain damages ordered by the Board exceeded the scope of the Board’s statutory authority. The Board had ordered an employer to compensate workers for “direct or foreseeable pecuniary harms” stemming from a National Labor Relations Act violation. The Board has taken the position that it has the power to redress harms related to various “costs simply to make ends meet” such as interest and late fees on credit cards, penalties for early withdrawals from retirement accounts, loan or mortgage payments, and transportation or childcare costs. The Court held that such damages constitute “compensatory” or “legal” damages, whereas the Act provides only “equitable remedies” such as back pay or reinstatement.

The Fifth Circuit decision aligns with recent rulings by the Third and Tenth Circuits that the Board lacks authority to order these extraordinary remedies. The Ninth Circuit has taken the opposite position. It remains to be seen whether the United States Supreme Court will resolve the circuit split. However, as noted above, the Board’s new General Counsel has issued guidance to the regions that they should need to seek such damages.

8^th Circuit reverses board’s holding that displaying Black Lives Matter insignia is protected concerted activity under the Act

The U.S. Court of Appeals for the Eighth Circuit vacated and remanded a 2024 Board ruling that found Home Depot violated the Act by prohibiting an employee from wearing a “Black Lives Matter” (BLM) insignia on his apron during working hours.

On February 21, 2024, the Board ruled that the employee’s refusal to remove the marking of “BLM” on his apron was protected concerted activity under Section 7 of the Act. Home Depot argued that “special circumstances” justified the ban, claiming that the BLM insignia could jeopardize employee safety, exacerbate employee dissension, and unreasonably interfere with the company’s established public image. However, the Board did not find this reasoning convincing.

On November 6, 2025, the Eighth Circuit Court of Appeals disagreed with the Board and sided with Home Depot. While the Court did not directly address whether displaying BLM or engaging in other types of political speech at work qualifies as protected concerted activity, it unanimously concluded that the Board did not adequately consider Home Depot’s “special circumstances” justification for its work rule.

Home Depot’s circumstances included (1) the store’s proximity to the site of George Floyd’s death (less than seven miles away), (2) heightened community tensions surrounding the BLM movement, and (3) recent civil unrest that caused Home Depot to temporarily close.

Considering these factors, the Court determined that Home Depot’s enforcement of its uniform policy was reasonable. Home Depot’s uniform policy allowed and even encouraged employees to customize their aprons with personalized pins, illustrations, and written messages. However, its policy prohibited an employee from “displaying causes or political messages unrelated to workplace matters.” In making its decision, the Court heavily weighed the fact that Home Depot consistently enforced its policy equally against employees with BLM insignia and employees with Blue Lives Matter insignia.

The case will now be reconsidered by the Board. While this ruling supports the neutral application of workplace uniform policies, it remains uncertain whether wearing such insignia qualifies as concerted activity. Furthermore, since the decision is particular to the circumstances of this case, it does not clarify employers’ authority to ban all forms of social or political expressions in the workplace. However, employers are encouraged to review their dress code/uniform policies to ensure they are applied uniformly and fairly to all employees.

Summary

As noted above, the Board regained a quorum in late 2025 after the Senate confirmed two Republican Board members and a new General Counsel. This gives the Board the three members needed to operate and issue decisions again, after being largely paralyzed by a lack of quorum for much of 2025. The current Board is made up of two Republican members and one Democrat, meaning the Republican majority controls outcomes but does not yet have enough votes (three) to overturn existing precedent without persuading the Democratic member.

It is unclear when the changes might start, but here are a few areas that may swing in the opposite direction under the second Trump Administration Board.

• Union election procedures: The Board may reconsider or slow down accelerated election timelines and provisions that favored unions, possibly restoring pre-2020 election rules that give employers more time to communicate with employees before an election.
• Reversal of pro-union precedent: The Board may revisit decisions like Cemex (union recognition without an election) and other pro-labor decisions from the Biden-era Board.
• Work rules and handbooks: The Board may return to the frameworks established under the first Trump administration for evaluating employer policies (e.g., Boeing standard) that are seen as more predictable and employer-friendly.

We will certainly stay on top these developments throughout the year, and you are welcome to follow along on our blog: www.palaborandemploymentblog.com