As part of the flurry of executive actions taken during the first week of his administration, President Donald Trump has terminated the general counsel of the National Labor Relations Board (NLRB or the Board), as well as one of the Board’s Democratic members. While the termination of General Counsel Jennifer Abruzzo was expected, given prior action by the Biden administration, the unprecedented termination of Board member Gwynne Wilcox came as a surprise.
The Board is made up of five members with staggered five-year terms. Traditionally, when fully staffed, the Board is made up of three members from the president’s party and two members from the opposition party. At the time of Trump’s inauguration, the Board had two vacancies arising from the Senate’s rejection of former President Joe Biden’s renomination of the Democratic Board chair, Lauren McFerran, and the nomination of Republican Josh Ditelberg. These vacancies left the Board with a 2-1 Democratic majority. Within a day of taking office, Trump named the lone Republican member, Marvin Kaplan, as chair, replacing Wilcox (who had been serving as chair since McFerran’s term expired in December). Trump was then expected to simply name two Republicans as Board members.
On Jan. 27, however, Trump removed Democratic member Wilcox, leaving the Board with two members – Republican Kaplan and Democrat David Prouty. With only two members, the Board lacks a quorum and cannot conduct business. Wilcox, whose term was not set to expire until August 2028, has stated that she intends to challenge the legality of her termination on the grounds that the National Labor Relations Act permits removal of Board members only for neglect of duty or malfeasance in office, and then only after the member receives notice of the proposed termination and a hearing.
In the case of Abruzzo, Trump’s ability to summarily remove her prior to the expiration of her term in July 2025 ironically was upheld judicially in connection with Biden’s abrupt dismissal of Trump-appointed General Counsel Peter Robb. Trump’s dismissal of Abruzzo via email on Jan. 27 was widely expected, since Abruzzo – who as general counsel was primarily responsible for driving the Board’s agenda – has been extremely aggressive in expanding union and employee rights while limiting employer rights.
Trump’s personnel actions will likely favor employers. It is expected that Abruzzo’s successor will move quickly to rescind directives to the NLRB that Abruzzo set out in various memoranda. Moreover, to the extent that the general counsel’s office is prosecuting cases aimed at overturning pro-employer precedent, those cases very likely will be dropped. As for Wilcox’s dismissal, the elimination of a quorum (at least for the time being) prevents the possibility of a Democrat-majority Board from enforcing a pro-union agenda by rendering decisions and taking other actions detrimental to employers prior to Trump being able to appoint a Republican majority.
As he has done in various non-labor areas, Trump’s aggressive actions place the Board in uncharted territory. Employers should stay tuned regarding how Wilcox’s legal challenge plays out, as well as whom Trump appoints to fill the two (or three?) current vacancies and how Abruzzo’s successor steers the Board going forward.
[View source.]
