Hunton Employment & Labor Perspectives

We are about 100 days into President Donald Trump’s second term, and there remain many open questions at the National Labor Relations Board (“Board” or NLRB). Most significantly, the Board currently lacks a quorum to take meaningful action, and many leadership roles remain open.

The Board currently (and once again) lacks a quorum.

After a flurry of court decisions, the Board has just two sitting Board members (Chairman Marvin Kaplan, a Republican, and Board Member David Prouty, a Democrat), leaving the Board one member shy of a quorum. Absent a quorum, the Board lacks the power to take meaningful actions, such as issuing decisions in representation and unfair labor practice cases, which commence at regional offices and then percolate through the agency, up to the Board members. There currently are no pending nominations to fill the three vacant Board seats. Unless and until the Board has a Republican majority, we do not expect to see the anticipated rollback of pro-union decisions that the agency issued during the Biden administration.

By way of background, shortly after taking office, President Trump removed then-Board Member Gwynne Wilcox from office during her five-year term. It was the first time a President took such action. Following Wilcox’s firing, she initiated a lawsuit in the United States District Court for the District of Columbia to challenge her removal. The D.C. district court sided with Wilcox, putting her back in office. A few weeks later, on appeal, a three-judge panel from the United States District Court for the District of Columbia stayed the lower court’s decision, removing Wilcox from office again. About a week after that, a majority of all the judges on the D.C. Circuit vacated the stay of the lower court’s decision, once again returning Wilcox to office. About two days later, the Supreme Court of the United States issued an interim ruling that stayed the D.C. Circuit’s en banc decision, once more removing Wilcox from office. A final decision is pending from the Supreme Court as to whether Wilcox’s removal was lawful.

The Supreme Court’s decision will inform whether President Trump will nominate two or three persons to the vacant Board member seats. If the Supreme Court deems Wilcox’s removal lawful, the President only will need to nominate two Republicans (subject to approval by the U.S. Senate) to give Republicans control of the Board. If the Supreme Court deems Wilcox’s removal unlawful, President Trump would need to nominate (and the Senate would need to approve) three Republicans to give Republicans control. (The President also could temporarily fill Board seats without Senate approval during Congressional recesses.)

President Trump has nominated a new NLRB general counsel, but a Congressional hearing has not yet been scheduled.

The next general counsel of the Board also hangs in the balance. In late-March, President Trump nominated management-side labor lawyer Crystal Carey to be the agency’s next general counsel. Prior to taking office, the Senate will need to vet and approve Carey. But no hearing has been scheduled yet.

After assuming office, President Trump followed precedent set by President Joe Biden by firing the NLRB’s then-General Counsel, Jennifer Abruzzo, with time left on her four-year term. President Trump then appointed William Cowen, who has devoted most of his professional career to service at the Board, as the Acting General Counsel. AGC Cowen already has rolled back many of Abruzzo’s initiatives that elevated the priorities of labor unions. Litigants also have seen agency attorneys withdraw arguments they advanced during the Biden administration. For example, earlier this month, NLRB prosecutors withdrew a number of arguments that sought to change Board law in Starbucks Corp. (lead case number 19-CA-294708), including an argument that sought to strip employers of rights to regulate electronic systems.

Nonetheless, as alluded to above, Abruzzo was successful in convincing the Board to issue several precedent shifting pro-union decisions, and those decisions continue to stand at the NLRB.

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We will continue to keep you abreast of developments at the NLRB.