President Donald Trump last week removed National Labor Relations Board member Gwynne A. Wilcox and terminated the board’s general counsel, Jennifer Abruzzo. The president then fired acting General Counsel Jessica Rutter on Feb. 1, replacing her with William Cowan. Although the termination of the general counsel was expected and consistent with actions taken by prior presidents, Wilcox’s removal was the first time a president has removed a sitting board member and potentially sets up a legal battle over the president’s authority to do so. (Wilcox sued Trump on Wednesday, alleging the president exceeded his authority by firing her.) Wilcox had been confirmed by the Senate for a second, five-year term ending in August 2028, so the move leaves the board without a quorum necessary to issue decisions. Field offices will continue to process unfair labor practice and representation cases.
The NLRA’s Statutory Protection for Board Members
The National Labor Relations Act (NLRA) provides that “[a]ny member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” In 2010, the U.S. Supreme Court held in New Process Steel, L.P. v. NLRB that the Board must have at least three members to take any action, even if the Board previously delegated its authority to a smaller group as permitted by the NLRA.
In a series of cases following New Process Steel, the Supreme Court held that Congress is limited in its ability to restrict the president’s removal authority to “for-cause” removal to “multimember expert agencies that do not wield substantial executive power” and “inferior officers with limited duties and no policymaking or administrative authority.” Although neither of these limitations apply to the NLRB or Wilcox’s removal, they demonstrate a growing trend in the courts to erase restrictions on the president’s removal authority, giving way to the Trump administration’s priority to limit or terminate agency authority.
The Practical Fallout for Employers
Because the board is now left with only two members, it cannot issue any new decisions. The lack of quorum does not affect the authority of the board agents and administrative law judges to investigate or hear cases, so unfair labor practice charges, representation cases and other petitions will continue to be processed, investigated and reviewed. Employers and unions alike must continue to comply with the requirements and restrictions of the NLRA. However, cases on appeal to the full board will not be reviewed until a third member is nominated and confirmed by the Senate, meaning parties could see increased processing times.
Anticipated Changes under a Trump-Influenced NLRB
The policies of the board shift to reflect the positions and enforcement priorities of the party in control. Some of the positions the board established during the Biden Administration that are likely to be reversed under a new Trump-controlled board include:
- Holding that work rules cannot restrict employees’ Section 7 rights to engage in protected concerted activity (such as disclosing terms and conditions of employment with others, criticizing employers publicly or joining a union);
- Precluding broad non-disparagement and/or confidentiality provisions in severance agreements;
- Requiring employers to respond to union voluntary recognition requests within two weeks or face an order to recognize the union and bargain; and
- Requiring employers to permit not only the use of union insignia at work, but other social, racial and economic justice insignia in the workplace (such as Black Lives Matter T-shirts or pins).
Because there is no timeline for the president to appoint a new board member, and any appointee will still have to be confirmed by the Senate, it could be some time before any changes are instituted. Until then, employers should continue to comply with all NLRA and board requirements, restrictions and rules, and consult labor counsel with any questions.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
[View source.]
