NLRB Top Cop Pick Primed to Dismantle Biden-Era Legal Precedents

Crystal Carey, a partner at a large management-side law firm, is poised to undo the worker-friendly precedents of the Biden-era National Labor Relations Board after being nominated as the agency’s lead litigator.

Carey, who has worked at Morgan, Lewis & Bockius LLP for the last eight years, was nominated by President Donald Trump to act as top lawyer at the NLRB, prompting optimism from employer-side attorneys and concern from worker advocates over her stances on federal labor law.

The move cements a pro-employer swing at the board, after the Senate failed to reconfirm former NLRB Chair Lauren McFerran late last year. Trump fired Democratic board member Gwynne Wilcox, and while a DC federal judge ordered her reinstatement while she fights the termination in court, an appeals court granted the administration a stay.

After the judge paused Wilcox’s reinstatement Friday, the NLRB is again without a quorum.

Carey worked at the NLRB for over eight years, both as an attorney under the general counsel, and then as a senior counsel for the board during the Obama and first Trump administrations. She’s been a vocal critic of recent decisions from the Biden-era NLRB, indicating that she believes it’s gone too far in limiting employer rights.

Members of the management-side bar say Carey’s experience working for the NLRB and in private practice equipped her for the post.

“She’s confident in a very non-polarizing way. She doesn’t shy away from her position but she does it in a way that is endearing and respectable,” said Samantha Bononno, a partner at Fisher Phillips LLP, who knows Carey professionally. “She knows her stuff.”

If confirmed by the Senate, Carey will replace Acting General Counsel William Cowen. Trump appointed Cowen in February to replace Jennifer Abruzzo, the Biden-era general counsel known for an employee-friendly reading of labor law, and toppling pro-employer board precedent.

Carey didn’t immediately respond to requests for comment on her nomination.

Carey’s employer called her “highly qualified.”

“Crystal’s background, experience, judgment, and training make her highly qualified for this important role, and we are excited for her on this well-deserved nomination,” Morgan Lewis Chair Jami McKeon said in an emailed statement.

Litigation Agenda

Trump’s pick met with swift pushback from the International Brotherhood of Teamsters, revealing a possible new rift between the labor union and the president.

The Teamsters President Sean O’Brien endorsed the president’s nomination for labor secretary—Lori Chavez-DeRemer—but called Carey a “bad choice,” in a statement.

“On behalf of her corrupt corporate clients, she wants to decimate labor unions and destroy American families,” O’Brien said. “She has no place serving as NLRB general counsel.”

Carey signaled some of her views on the NLRB’s recent work on a panel with board members in November 2024. There the Morgan Lewis partner issued a sharp rebuke of the board’s recent decisions limiting employers’ statements on unionization and preventing them from compelling workers to attend meetings to listen to anti-union messages.

“Based on everything that I’ve seen and that others have seen in the last few years, I think it’s pretty clear that you’re actually looking to eliminate the rights of employers to communicate directly with employees at all,” she said of the two decisions that both overruled decades-old precedent.

Carey’s opinions stand in strong contrast to the positions of Abruzzo, who had advocated for expanding the reach of federal labor law.

The former union and NLRB attorney pushed the board to restrict captive audience meetings, employer handbook provisions, and restrictive covenants like non-compete agreements.

One of Carey’s first steps in reversing the Biden board’s work, Bononno said,could be requiring the regional offices to submit requests for advice on any complaints surrounding board precedents on union elections, severance agreements, and handbook provisions. This step would help the board fast-track the process to identifying potential vehicles for overturning precedent.

The board’s holding in Thryv, Inc. is also primed for re-examination under a Republican administration. Thryv, which allows the board to order compensation for all “foreseeable and pecuniary” harms stemming from an employers’ unlawful conduct, has received mixed opinions in the US appeals courts.

The agency has continued to levy these types of remedies, but faces an increasing amount of challenges over it.

Marvin Kaplan, currently the board’s sole GOP member and its chair, said in a September ruling that he doesn’t believe the precedent is sound law anymore.

Constitutionality Question

Further criticism of Carey stems from her position at Morgan Lewis.

The firm, though not Carey specifically, has been at the forefront of some of the biggest modern-day labor disputes, representing clients like Amazon Inc., SpaceX, Apple Inc., and Tesla.

In a lawsuit against the NLRB, Morgan Lewis attorneys—including former board Chair Harry Johnson—argued on behalf of SpaceX that the labor agency’s very structure violates the US Constitution by unlawfully insulating its administrative law judges from removal.

This argument has grown in popularity and appeared in legal filings from other employers also targeting the NLRB. Abruzzo and former Democratic Chair McFerran repeatedly condemned the lawsuits, saying they were being used to undermine the agency’s abilities to police the nation’s labor laws.

Carey has not spoken publicly on the constitutionality of the NLRB’s structure but Wilma Liebman, former board chair under the Obama administration, said she was concerned about her nomination.

“I don’t know where she stands on that, or whether she’ll feel somehow obliged to that point of view,” Liebman said of Carey. “I think it doesn’t bode well.”