President Trump terminated NLRB General Counsel Jennifer Abruzzo and Democratic member Gwynne Wilcox in a partly unprecedented move that leaves the Board without a quorum to act. It is likely to further the partisan policy whiplash that has increasingly occurred at the Board over the last decade.
General Counsel termination has precedent: President Biden opened the door to firing independent agency officials when he terminated then-General Counsel Peter Robb on day one of his administration – the first time a President had done so. President Trump’s termination of GC Abruzzo echoes that action, which was later upheld in court as constitutional.
…Board member terminations do not: President Trump broke new – and potentially unlawful – ground by also firing Board member Wilcox. Sitting NLRB members are guaranteed protection from termination except for cause by the text of the National Labor Relations Act, and President Trump is the first to fire a current member.
Is this legal? Ms. Wilcox has indicated that she will legally challenge her termination and organized labor groups are considering pursuing temporary restraining orders to block the firing.
The text of the NLRA provides that the President may remove Board members “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause” (the General Counsel position does not have any such statutory protections).
The extent to which this language insulates Board members from the President’s removal power – and the extent to which Wilcox allegedly neglected her duties – will be the subject of litigation which is expected to begin soon.
Short-term implications:
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Without a quorum, the Board will be unable to issue any decisions or engage in other policymaking functions (such as rulemaking).
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It is likely that the ongoing legal challenges to the terminations may freeze or negate Board decision-making until such litigation is resolved, even if Wilcox is reinstated as a Board member through a temporary restraining order or if new members are nominated and confirmed.
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Accordingly, the five-member Board is essentially shut down until further notice, although other agency functions will continue.
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Union elections can be conducted and unfair labor practice charges can be issued and processed by the General Counsel but there can be no final Board adjudications or policy changes without a quorum.
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For the time being, employers can expect no final adjudication of any pending unfair labor practice charges, and any expected policy reversals of Biden-era precedents (Cemex, e.g.) are on the shelf for the foreseeable future.
Potential long-term implications:
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If the terminations are upheld as constitutional, President Trump and future presidents could install five Board members of their own party.
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If presidents are able to install their preferred Board members at the start of each administration, companies can expect even more drastic swings on policy issues such as joint employer liability, the scope of concerted protected activity, and union election rules every four to eight years.
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Wilcox’s termination and expected litigation is one of many other pending lawsuits challenging Board authority that could eventually reach the Supreme Court, potentially resulting in the Board, as currently structured, found unconstitutional.
