Key Points

• Post-Chevron deference: Circuit courts are applying independent judgment when interpreting the NLRA, narrowing the deference courts traditionally gave to the NLRB, with outcomes varying by circuit.
• Stopping ULP proceedings: Circuit courts are split on halting NLRB cases against employers while those courts consider the constitutionality of the Board.
• Remedies, bargaining orders, and subpoenas: Circuit courts are also split on limiting or awarding expanded damages to employees, and are examining a union-friendly organizing framework and employer-issued subpoenas to employees.

Appellate courts have been active in the labor space amid a “lost year” for the National Labor Relations Board (NLRB), which has issued almost no decisions since the beginning of the second Trump administration, following the removal of Board Member Gwynne Wilcox and delayed nominations. (We wrote about the lost year in a recent alert.) Decisions by the United States Courts of Appeal in 2025 have illuminated a new approach to interpreting and applying the National Labor Relations Act (NLRA) in a post-Chevron landscape.

Employers should be aware of shifting interpretations and circuit splits when assessing labor practices and associated risks. Circuits are now split on whether unfair labor practice (ULP) proceedings should be halted while considering constitutional challenges to the NLRA, and whether the Biden-era Board’s expanded remedies may apply.

Expect further appellate conflict and potential Supreme Court rulings in 2026, including rulings relating to the Biden-era Board’s sweeping 2023 Cemex decision, which allowed for a groundbreaking, union-friendly organizing process and the issuance of subpoenas to employees.

A more in-depth look at these issues is below.

Deference Post-Chevron (Loper Bright)

With the Supreme Court’s elimination of Chevron deference, circuit courts are reassessing what weight to give NLRB interpretations of the NLRA. Recent decisions show courts applying independent statutory analysis after Loper Bright, with outcomes varying by circuit and often turning on close readings of the NLRA’s text and existing Supreme Court precedent rather than categorical skepticism toward the Board.

5th Circuit

On remand from the Supreme Court to address Loper Bright, the 5th Circuit in May 2025 reconsidered whether the NLRB General Counsel could withdraw a ULP complaint against a union after the employer had filed a motion for summary judgment. Rejecting Chevron deference, the court independently analyzed the NLRA and held, as it did before remand, that the NLRA provided the General Counsel with the authority to withdraw the complaint. The court relied on Supreme Court precedent in NLRB v. UFCW, 484 U.S. 112 (1987) to distinguish the General Counsel’s prosecutorial decisions from Board adjudication, concluding that the filing of a summary judgment motion does not divest the General Counsel of that authority. The court also explained that, since Congress created the office of the General Counsel, the NLRB has consistently treated that office as having full and final authority to dismiss charges, and while the Board’s interpretation is not controlling, courts applying Loper Bright may still give it weight under Skidmore v. Swift & Co., 323 U.S. 134 (1944).

10th Circuit

In May 2025, the 10th Circuit found that it no longer owed deference to NLRB decisions under Loper Bright, holding that courts must exercise independent judgment and refrain from finding for the Board merely because the NLRA is ambiguous. The court upheld several Board findings, such as its findings that an employer unlawfully threatened workers regarding their union activities and refused to reinstate striking workers, and declined to enforce the Board’s finding that the employer unlawfully interrogated a worker regarding her union activities. There is no indication that the absence of Chevron deference to the Board made a difference in the court’s holdings.

3rd Circuit

In December 2024, the 3rd Circuit addressed whether an employer’s unilateral decision to end wage raises that it provided to employees during the pandemic was a mandatory subject of bargaining under the NLRA. The court upheld the Board’s determination that pay was a mandatory subject of bargaining, noting that while the Supreme Court had historically deferred to the Board on such questions, it is now “somewhat of an open question” whether that deference remains after Loper Bright. The court posited, “[i]t would appear to us … that judicial deference to the Board’s classifications of the ‘terms and conditions of employment’ under the [NLRA] is distinct from Chevron deference, as the Supreme Court’s decisions developing that deference to the Board predate Chevron.” Nonetheless, the court did not decide whether Chevron deference on to the Board based on pre-existing Supreme Court precedent survived Loper Bright given that, even upon its independent review, the court reached the same conclusion as the Board.

D.C. Circuit

In February 2024, before the Supreme Court decided Loper Bright, the D.C. Circuit upheld the Board’s successor bar doctrine, relying on the D.C. Circuit’s “normal deference” to the Board’s interpretation of the NLRA. The doctrine provides that, after a successor voluntarily recognizes the incumbent union, the union holds an irrebuttable presumption of majority status for a reasonable period. The Supreme Court vacated and remanded that decision for reconsideration in light of Loper Bright, and the case is pending before the D.C. Circuit. Now, that court will reassess the successor bar doctrine under an independent, non-Chevron standard of review. Oral argument was held in September 2025.

Future deference to the Board

Loper Bright’s doctrinal path in circuit decisions reviewing Board orders is unsettled, and cases may turn on their facts, not an interpretation of the NLRA. Nonetheless, the NLRB and litigants supporting its position can no longer assume a steady stream of Chevron-style deference; instead arguments must focus on statutory text, Supreme Court precedent, legislative history and other tools of interpretation. Under Loper Bright, circuit decisions could be inconsistent where the NLRA’s text and other indicators of congressional intent are open to competing constructions.

Stopping NLRB Proceedings

The 3rd and 5th Circuits have reached divergent conclusions on whether ULP cases should be stayed while courts assess constitutional challenges to NLRB officials’ removal protections.

In December 2025, the 3rd Circuit declined to stop one such ULP case. The court found that, under the Norris-LaGuardia Act (NLGA), federal courts lack jurisdiction to enjoin cases “involving or growing out of a labor dispute,” including the underlying dispute between the union and employer, and that the NLGA’s narrow exceptions do not apply to permit a stay of agency proceedings.

On the other hand, in August 2025, the 5th Circuit considered a similar challenge to the NLRA’s constitutionality and halted the underlying ULP proceedings. The court held that the employer was likely to succeed on the merits of its constitutional claims and that forcing participation in proceedings before unconstitutionally insulated NLRB officials constitutes irreparable injury. The court found, contrary to the 3rd Circuit, that the NLGA did not bar injunctive relief where a party seeks to prevent allegedly unlawful exercises of governmental power rather than to restrain a “labor dispute” within the meaning of the NLGA. We discussed the 5th Circuit’s decision and its consequences for employers in a prior alert.

Employers should monitor court decisions on this unsettled issue in the circuits in which they conduct business.

Interestingly, on December 17, 2025, the 5th Circuit denied rehearing en banc following a decision of a panel of that court upholding the NLRB’s reversal of a prior ULP ruling. The Board had reversed its decision on the grounds that a Board Member who participated in the decision had a conflict of interest. Four judges on the 5th Circuit dissented from that court’s denial of en banc review, arguing that the NLRB’s reversal reflected a broader problem of agency overreach and lack of accountability (a “naked power grab” and “political gamesmanship”), raising constitutional concerns about independent agencies acting without sufficient presidential oversight. The dissent noted that courts were “[t]hankfully” no longer required to defer to agencies given that Chevron was overruled.

Thryv  Remedies

A circuit split has also developed over the Board’s Thryv framework that authorized the Board to award “direct or foreseeable” pecuniary harms resulting from the ULP beyond the classic Board relief of backpay and reinstatement. The 3rd, 5th and 6th Circuits rejected such remedial expansions, while the 9th Circuit has upheld them. Expect further appellate conflict and a potential Supreme Court vehicle. (We previously wrote about the Board’s decision in Thryv.)

3rd, 5th and 6th Circuits reject Thryv

In the last 12 months, these three courts found that the NLRA limits the Board to granting equitable relief such as reinstatement and backpay — not Thryv’s damages, which the courts determined were legal remedies.

The 5th Circuit emphasized that for nearly 90 years the Board had not interpreted the NLRA to authorize damages flowing directly or foreseeably from a ULP, such as interest and late fees on credit cards or penalties for early withdrawals from retirement accounts.

Both the 5th and 6th Circuits compared the NLRA to Title VII, noting that Congress expressly authorized compensatory and punitive damages there — reinforcing that when Congress intends to permit this form of monetary relief, it does so explicitly.

The 6th Circuit further found that its holding was consistent with the canon of constitutional avoidance, reasoning that interpreting the NLRA to authorize legal monetary remedies could raise serious Seventh Amendment concerns by permitting jury trial-triggering damages in an administrative forum.

Employers in these circuits should expect exposure to fewer novel monetary damages from NLRB orders. (See 3rd Circuit decision here (Dec. 2024), 5th Circuit decision here (Oct. 2025), and 6th Circuit decision here (Nov. 2025)).

9th Circuit adopts Thryv

Contrary to these decisions, the 9th Circuit enforced an NLRB order that included Thryv’s expanded relief, explaining that the Board’s remedial exercise would allow for restoration of the status quo and is therefore consistent with the NLRA’s remedial framework. The court emphasized that the precise scope of any damages would be determined in subsequent compliance proceedings, suggesting that the court deferred concrete determination of the contours of the remedy to the Board’s future remedial analysis. Employers in the 9th Circuit should assume Thryv is alive given the court’s overall approval.

Cemex Bargaining Orders

Employers and unions are now in a waiting game as the 6th and 9th Circuits consider challenges to the Board’s Cemex decision, issue in 2023. We previously wrote about this groundbreaking, union-friendly organizing framework.

The 6th Circuit held oral argument challenging the Cemex framework in December 2025. The 9th Circuit is reviewing the Board’s Cemex decision directly. In November 2025, the Board filed a motion asking that court to resume its appellate review. The court heard oral argument in October 2024, but, shortly thereafter, withdrew submission of the case pending issuance of the mandate in the 9th Circuit’s Thryv remedy case discussed above; that remedy could potentially apply to an employee that the employer allegedly discriminated against in the Cemex case. The courts’ decisions will be important given Cemex’s sweeping changes to Board law.

Subpoenas to Employees

In a decision issued in September 2024, the Board held that the employer violated the NLRA by issuing overly broad subpoenas to employees. An administrative law judge had previously revoked the subpoenas that sought confidential union related information and communications with the NLRB, including witness affidavits. The Board explained that the employer’s requests contravened protections for confidential Board processes and were unlawful regardless of employer motive or actual enforcement, because the injury is in the request itself. In December 2025, the 5th Circuit heard oral argument to consider the matter. In a brief filed with the court, the employer argued that the Board’s decision risks turning every administrative law judge ruling revoking a subpoena into an automatic ULP finding.

Pending the court’s decision, as well as any administrative change once the Board regains a quorum, employers should assume employee subpoenas will be closely scrutinized, making narrow, targeted practices essential to minimizing risk.

For more information on this and related topics, contact authors Katie Cohodes at kcohodes@foxrothschild.com or 312.276.1321, Mark Eskenazi at meskenazi@foxrothschild.com or 202.461.3109, or any other member of our Labor & Employment Department.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the authors and not necessarily this law firm or its clients.