Trump’s push to remake the NLRB
Things are a bit topsy-turvy currently at the National Labor Relations Board (NLRB), the federal agency that oversees labor-management disputes in the private sector. The five-member Board currently has three vacant seats, a Republican appointee as chairman and a Democratic appointee as the lone remaining member. The NLRB requires a quorum of at least three people for it to act. However, one former member is challenging her firing and that case may end up before the Supreme Court.
This situation is a result of President Trump’s recent firing of NLRB member Gwynne Wilcox, who had previously been chairwoman during the Biden administration. Trump also elevated Republican Board member Marvin Kaplan to chairman and fired general counsel Jennifer Abruzzo. Wilcox challenged her firing and courts initially ruled that it was illegal but an appeals court on Monday stayed that decision. The result is that Wilcox remains off the NLRB for now, but she has appealed. The NLRB’s website does not list her a current member.
In practical terms, this is a formula for gridlock because the Board lacks a quorum to act. Meanwhile, there are two other open seats on the NLRB that President Trump could try to fill. That would give the Board a GOP majority but would require Senate confirmation. Democratic lawmakers are certain to do what they can to delay any vote.
The National Labor Relations Act (NLRA), the law that created the agency, states that NLRB members may only be fired for “neglect of duty or malfeasance in office” and this requires “notice and hearing.” Trump’s letter firing Wilcox claimed that she had “vastly exceeded” her authority as chairwoman, citing in particular a rulemaking on the “joint employer issue” that the NLRB advanced under her but that the courts subsequently rejected.
However, the Trump administration has also asserted that it didn’t need to justify Wilcox’s firing in that way. It argued that the section of the NLRA that limits the president’s ability to fire members was itself unconstitutional. “Board members have broad policy making responsibilities and thus are not inferior officers,” Trump’s letter stated. Thus, they were not covered by the Supreme Court’s 1935 Humphrey’s Executor ruling, which limited firings to top officials with policy-making authority. Lower-ranking officers retained civil service protections.
The appeals court on Monday accepted the administration’s constitutionality argument: “[T]he Government is likely to succeed in showing that the statutory removal protections for National Labor Relations Board commissioners and Merit Systems Protection Board members are unconstitutional.”
If Wilcox’s firing ends up before the Supreme Court, as is likely, the justices could rule that the firing was legal, invalidating the related section of the NLRA. It is possible that the court, which currently has a 6-3 conservative majority, will go that far. Under Chief Justice Roberts, it has taken a skeptical view of independent agencies like the NLRB in several recent rulings. The Roberts Court sees their existence as upsetting the balance of powers doctrine.
The justices have notably tended to grant more protection to federal entities that are run by bipartisan boards, seeing that as reflective of Congress wanting to ensure their independence. The NLRB would appear at first glance to fit this mold since its five-member board has been traditionally split 3-2 between the two major parties. The NLRB members served staggered terms, and the White House has traditionally determined the majority by picking the fifth member when that seat becomes open.
However, that is merely tradition. Nothing in the NLRA requires that the board be split in this way. The tradition emerged as a method to ease nominees through the Senate confirmation process. A president could, if they wanted, appoint only members from one party to the NLRB, though they might have a hard time getting them confirmed.
In short, it is possible that Trump firings could be upheld and he would therefore have the opportunity to fill all Board vacancies with loyalists. The NLRB could then become a tool for Trump to punish businesses that he dislikes. Republicans relishing the idea should remember that the next Democratic president would be tempted to use the NLRB in the same way and without a split-member Board it would be much restrained than it has been in the past.
A sidenote to all this is that the NLRB’s general counsel is the one that actually manages the Board and directs its staff on a day-to-day basis. The title of “general counsel” confuses people, even members of Congress, into thinking that it is just an attorney that works for the Board. Functionally, the position is closer to chief administrative officer, and it is co-equal to the Board in the agency’s organizational chart. However, the Board can veto the counsel’s actions. The current acting general counsel is William Cowen, a longtime legal staffer for the Board.