Trump follows Biden precedent in sacking NLRB general counsel
President Trump’s decision to fire National Labor Relations Board (NLRB) Chairwoman Gwynne Wilcox and general counsel Jennifer Abruzzo is controversial and will likely be challenged in court. Those disturbed by the firings, however, should remember that President Biden created the precedent for incoming administrations to reshape the NLRB when he fired then-NLRB general counsel Peter Robb, a move that aroused little controversy at the time.
Wilcox’s firing is the more dubious of the two because she is a board member. The National Labor Relations Act (NLRA), the law that created the NLRB, says that the president may remove board members “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” No such allegations appear to have been made against Wilcox, who has vowed to legally challenge her firing.
It is possible that Wilcox will claim protection from firing under the Humphrey’s Executor precedent, the 1935 Supreme Court case that limited the president’s ability to fire members of independent regulatory agencies. However, as my colleagues have argued, the protections afforded by Humphrey’s Executor extend only to federal agencies that do not exercise any executive power, such as federal rulemaking. The NLRB, by contrast, does have rulemaking authority and thus its members are not covered. Wilcox’s attempts to defend herself may result in the courts clarifying just how far the Humphrey’s Executor precedent goes.
The president is on firmer ground regarding the firing of Abruzzo thanks to the precedent created by the Biden administration. When it demanded Robb’s resignation in early 2021 and the then-general counsel refused to step down, the Biden administration fired him outright. At the time, the firing appeared to violate the Administrative Procedures Act. A business challenged Abruzzo’s actions as general counsel on the grounds that Robb’s firing had been illegal, tainting her appointment as his replacement. A unanimous three-judge panel of the 9th US Circuit Court of Appeals rejected that in 2023, ruling instead that the NLRA only prevents the board members from being removed at will, not the general counsel.
Abruzzo’s statement regarding her firing appears to concede that it was lawful. Unlike Wilcox, she does not challenge it, instead stating that it has “been the greatest honor and privilege” to be NLRB general counsel.
The sackings mark the end of a period when the NLRB ceased being a neutral referee between business and unions. Abruzzo, a former Communication Workers of America lawyer, was the leading edge for this and used her appointment to be an aggressive advocate for unionization. She pushed for so-called “card check” rules changes that would have severely curtailed secret ballot elections at workplaces, instead allowing unions to be officially recognized when they merely claimed to have majority support. Abruzzo claimed that the existing standard of allowing NLRB-monitored elections to verify the union’s claim of majority support “failed to deter unfair labor practices during union organizing drives and provide for free and fair elections.” This was pure Orwellian doublespeak.
Abruzzo sought to muzzle employers from being able to say anything to employees during union organizing bids, deeming even mildly critical comments unfair labor practices. She called on the NLRB to overturn a 1985 precedent called Tri-Cast which gave employers some leeway. She called on the board to prohibit employers from holding mandatory meetings where managers could make the case against unions. Abruzzo also attempted to lower the legal standard for NLRB to issue injunctions, a move rejected by the Supreme Court in its 2024 Starbucks Corp. v. McKinney ruling.
In his first administration Trump’s picks to run the NLRB steered a more neutral course for the agency. He should return to that practice in this administration.