Trump Fires NLRB General Counsel and One Board Member
Topics: Legal Information, Union-Management Relations
When former President Joe Biden took office in January 2021, he terminated the General Counsel of the NLRB, Peter Robb, on Inauguration Day. That termination was challenged by the business community. Multiple lawsuits, including the Ninth Circuit decision in Aakash Inc., DBA Park Central Care and Rehabilitation Center v. NLRB held that the termination was constitutional. As a result, many thought Trump would have the same fate in store for Robb’s replacement, Jennifer Abruzzo, on January 20.
Then, nothing happened on January 20, or at any time last week. The labor law community was not sure what was going on. Was the support of Teamsters President Sean O’Brien saving Abruzzo’s job? Was Trump too busy dealing with immigration, January 6 convictions, and other issues to care about the NLRB? If so, how long would that last? Lots of speculation started.
Last night, we got our answer. In one swift move, Trump terminated Abruzzo, and at the same time, he one-upped Biden by also terminating NLRB Board Member Gwynne Wilcox, whose term was not set to expire until August 2028. The Abruzzo termination is supported by federal court precedent. It is unclear whether the Wilcox termination is proper and permissible.
Section 3 of the National Labor Relations Act (NLRA) expressly states that the President can only terminate NLRB Board Members “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” Thus, the Wilcox termination appears to be in conflict with the Act. However, there are some that believe that statutory restrictions against at-will removal of Board Members in Section 3 are an unconstitutional limit on the power given to the President as the head of the Executive Branch of government and have filed lawsuits challenging NLRB actions on this ground. The lower courts have not been consistent in reaching a conclusion on this issue. The termination of Board Member Wilcox, who immediately thereafter issued a statement claiming that she plans to pursue all legal remedies to challenge this action, appears to be a staging ground for accelerating Supreme Court review of the issues related to the constitutionality of the NLRA provisions limiting NLRB Board Member terminations.
Meanwhile, as a result of these terminations, the NLRB now only has two members, Chairman Marvin Kaplan, who is pro-business, and David Prouty, who is pro-union. The Board needs a quorum of at least three members to take any actions, so at this point, the Board appears to be powerless, unless Trump appoints a third member. While this may grind the Board to a halt, it also will delay expected actions by a Trump appointed Board to overturn many of the pro-union decisions issued by the Biden Board. It also remains unclear what will happen at the Regional level with matters being adjudicated and prosecuted by the various NLRB regions via Regional Directors through NLRB administrative law judges. Fauda is probably the appropriate word for the situation, at least for the next few days, and perhaps longer.
In terms of what employers should do, that remains very unclear and there are few clear right or wrong answers. Generally, decisions should be made on a case-by-case basis and will need to evolve as things develop with the Board over the next few days and weeks. Employers with matters before the NLRB and ongoing labor campaigns should consult with experienced traditional labor lawyers to help evaluate and strategize on how these terminations may, or may not, influence their approach to pending matters.