Trump Nominates NLRB Members, Issues Labor Policy Orders

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Top Five Labor Law Developments for July 2025

by: Laura A. Pierson-Scheinberg, Richard F. Vitarelli, Nicholas A. Scotto, Lorien E. Schoenstedt of Jackson Lewis P.C. - Publications

Tuesday, August 12, 2025

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President Donald Trump nominated Scott Mayer and James Murphy, a longtime National Labor Relations Board official, to fill the Board’s two vacant seats. The five-member Board has lacked a three-member quorum since January 2025, when Trump terminated former Board Member Gwynne Wilcox. Wilcox’s termination remains subject to litigation and Trump has not appointed a nominee to fill her seat. In the meantime, with only two members — Chairman Marvin Kaplan (Republican) and David Prouty (Democrat) — the Board is unable to issue decisions. The two nominees must be confirmed by the Senate. Although Chairman Kaplan’s term expires Aug. 27, 2025, the nominees’ confirmation would restore a quorum.
President Trump issued an executive order (EO) directing the Board and Department of Labor to clarify the employment status of college athletes. EO 14322 aims to address recent litigation and regulatory changes that have impacted the National Collegiate Athletic Association (NCAA), including collective bargaining rights, athlete compensation, and transfers, all of which have led to escalating pay-for-play practices and donor-driven bidding wars. The EO also directs federal agencies to develop enforcement and litigation strategies to protect college sports from destabilizing legal challenges. While the EO aims to “maximize the educational benefits and opportunities provided by higher education institutions through athletics,” it does not provide agencies specific guidance for implementing these initiatives.
Acting Board General Counsel (GC) William Cowen issued three memoranda updating guidance on surreptitiously recording bargaining sessions, “salting,” and jurisdictional disputes. GC Memorandum 25-07 asserts that secretly recording collective-bargaining sessions is a per se violation of the National Labor Relations Act because it undermines the duty to bargain in good faith. GC Memorandum 25-08 outlines stricter standards for handling “salts” (union members who apply for jobs at nonunion employers to organize workers) in employment discrimination claims, requiring proof that applicants had a “genuine interest” in seeking employment and clarifying how backpay should be assessed when cases have merit. GC Memorandum 25-09 reaffirms the Board’s policy of referring jurisdictional disputes to the National Mediation Board, which has jurisdiction over union representation disputes for airline and railroad industry employees, when jurisdiction under the Act is unclear, emphasizing the importance of preserving timely resolution. While GC memoranda do not have the force of law, reflecting only the GC’s agenda for prosecuting cases, the memos signal a renewed focus on procedural integrity and clarity in labor relations enforcement.
The U.S. Court of Appeals for the Ninth Circuit granted the Trump Administration’s emergency motion to stay a district court’s injunction against EO 14251, which exempted more than 40 federal agencies and subdivisions from collective bargaining over national security concerns. American Federation of Government Employees, AFL-CIO et al. v. Trump et al., No. 25-4014 (Aug. 1, 2025). A California district court had found serious First Amendment retaliation concerns, citing statements in a White House Fact Sheet that criticized federal unions. However, the appellate court concluded the government was likely to succeed on the merits, finding the EO was driven by national security concerns rather than retaliatory animus. The court emphasized the president’s statutory authority to exclude agencies whose primary functions involve national security. The court further found that the government would suffer irreparable harm without a stay and that the public interest favored preserving executive autonomy in national security matters. Similar litigation is pending in other federal courts. The Trump Administration has directed agencies to refrain from terminating agreements until litigation concludes.
Recent Board Division of Advice guidance on religious exemptions and non-solicitation provisions reflects a narrowing of the Board’s jurisdiction and a more employer-favorable approach to statutory coverage. In one memo — regarding religious jurisdictional exemptions under the Act — the Division of Advice reaffirmed that Board regional offices should not exercise jurisdiction over faculty at religious institutions that meet the Bethany College three-part test. Under Bethany College, when determining whether to assert jurisdiction over a religious institution claiming religious exemption, the Board will review whether the institution (1) holds itself out to the public as a religious institution, (2) is nonprofit, and (3) is religiously affiliated. The guidance also directs that Regions should no longer seek to overturn the Bethany framework, a reversal of former GC Jennifer Abruzzo’s initiative. In a separate memo, the Division addressed the enforceability of non-solicitation provisions in an employment agreement and found that the individual was a managerial employee at the time of signing, placing them outside the bargaining unit. As a result, the employer’s unilateral implementation and enforcement of the agreement — including cease-and-desist letters — did not violate the Act, and the Region was instructed to dismiss the charge in full.