President Trump has fired a Board Member and the general counsel of the National Labor Relations Board (NLRB), which was created by Congress as an independent and non-partisan federal agency. The termination of legal counsel is standard practice for a new administration, but the firing of a Board Member without cause is a blatant violation of the National Labor Relations Act and is leaving many observers wondering what this means for workers nationwide.
What Happened at the NLRB?
The NLRB oversees application of the National Labor Relations Act, which determines such things as who is eligible for overtime pay and the conditions for labor organizing. It was unsurprising for President Trump to recently fire General Counsel Jennifer Abruzzo, but it was extraordinary for him to also terminate a sitting board member, Democrat Gwynne Wilcox.
The NLRB is overseen by five Board Members. As there were already existing vacancies on the Board, Wilcox’s termination now brings the Member total to two, below the necessary quorum of three Members. Accordingly, the NLRB is also unable to adjudicate cases or make new rules. In effect, it has been “paralyzed.”
The NLRA is very clear on the requirements for terminating an NLRB Member: one can be fired only "for neglect of duty or malfeasance in office, but for no other cause." 29 U.S.C. §153. Further, a Supreme Court case from 1935, Humphrey's Executor v. United States, held that although a president can generally replace officers in the executive branch of government, he does not have that right when such officials perform “quasi-legislative or quasi-judicial” functions. The NLRB Members certainly possess powers that fall into this category.
In response, even some Trump allies have acknowledged the illegality of the move. For her part, Wilcox said her removal was illegal and “violates long-standing Supreme Court precedent." She has vowed to take legal action.
What Does the NLRB Purge Mean for Workers?
The NLRB’s rulemaking abilities are currently halted as it awaits reaching quorum. The agency cannot currently issue final adjudications on cases and workers who file charges may experience long wait times.
According to one legal expert, this is “a really serious situation,” since it appears that “there’s no protection for the right to collectively bargain, to be in a union, in this country.” That said, private sector workers who believe their employers have violated the NLRA can still file charges, as usual, with the NLRB’s various regional offices. Public sector employees can still file charges with certain state entities, such as Illinois’ Labor Relations Board, which are not impacted by Trump’s actions.
Workers can also rely on beneficial state laws, such as Illinois’ new Worker Freedom of Speech Act. It bars workplaces from requiring employees to attend “captive audience” meetings, where management could denigrate unionization efforts and organized labor. These meetings often serve to intimidate workers away from any organizing activity.
Nonetheless, with a new employer-friendly NLRB, it may simply be up to workers to do what they can, in solidarity with one another, in their own context. They may end up relying less on NLRB tools, such as unfair labor charges, and pivot instead to strategic communications with management. Workers may need to make more concessions up front than they would have in the past, but doing so could lead to securing deals without entering a protracted dispute at the NLRB that could very well end up favoring management.
Workers might also decide to act more boldly. They can engage in various forms of “concerted activity,” including talking to one another about pay, refusing to work in unsafe conditions, and drafting petitions.
In the current climate, workers might even be more inclined to engage in organizing or direct action, such as “direct unionism.” Some observers believe this is already happening: according to a labor organizer in the print journalism sector, “What we’re returning to is a kind of pre-1930s period where employer-labor relations were much more volatile, with more strikes and more disruption to commerce. The rules were put in place for a reason. And it’s entirely possible we’re all going to relearn what those reasons were.”
It may be true that Americans will have to relearn the costs of peeling back workplace protections. Unfortunately, those lessons took a long time to be learned almost 100 years ago, and many workers could be harmed before we fully learn them once again.