On his first day in office, Trump appointed Republican Marvin Kaplan as chair of the National Labor Relations Board. This was neither unexpected nor unprecedented; Presidents generally appoint a member of their party to chair the board, which has traditionally been made up of three members of the party in power and two members of the opposition party.
The following week, he fired NLRB General Counsel Jennifer Abruzzo, who had moved NLRB case law in a more pro-worker direction since she was confirmed in July 2021. This was also neither unexpected nor unprecedented. President Biden had fired Abruzzo’s predecessor, Peter Robb — who had made the board significantly more employer-friendly during the first Trump administration — on his first day.
However, in addition to firing the General Counsel, which is clearly within the President’s power to do, Trump also dismissed Democratic board member Gwynne Wilcox. This is both unprecedented and, on the face of it, unconstitutional — the National Labor Relations Act only allows a President to remove a member of the board for neglect of duty or malfeasance.
With Wilcox’s firing, the NLRB no longer has a necessary quorum of three members, and cannot issue decisions. If Wilcox’s firing is upheld by the Supreme Court — which indicated last year in SpaceX v. NLRB that it is sympathetic to a fringe conservative legal theory that would allow the President to remove board members at will — Trump could simply choose not to appoint any members to the board, preventing the NLRB from issuing any decisions throughout his entire term.
While the NLRB can continue to hold representation elections and process unfair labor practice (UPL) charges without a quorum, any decision made by the board’s administrative law judges (ALJ) that is appealed to the full board would essentially remain “on appeal” until a quorum is restored. Employers who break the law, or who simply refuse to bargain with their unions, will now be able to appeal any decisions against them to a board that cannot make a ruling. As analyst Matt Bruenig explains on his blog NLRB Edge:
Employers intent on disregarding labor law can exploit the situation by prolonging cases until a Board decision is required. In ULP cases, this means appealing any adverse ALJ decision to the Board. In representation cases, employers can refuse to bargain with a union after it is certified. When an ALJ subsequently rules that a refusal to bargain has occurred, the employer can appeal that decision to the Board, effectively stalling the representation process indefinitely.
It is also possible that Trump will simply appoint a majority of anti-worker Republicans to the board — something he can do regardless of whether his removal of Wilcox is upheld. His task will be made easier by the failure of the Democrats to reconfirm pro-worker board member Lauren McFerran last December, while they still had a majority in the Senate.
Regardless of which path the Trump administration takes, it is more important than ever that UE locals rely on organization in the workplace rather than legal charges.