MAJOR Shake Up in the NLRB Clouds Agency’s Future

January 28, 2025

Late Monday, President Trump followed through on his promises to shake up the makeup of the National Labor Relations Board (“NLRB”) by firing General Counsel Jennifer Abruzzo and Board Member Gwynne Wilcox. While the change in General Counsel was widely expected, the removal of Board Member Wilcox is an unprecedented move that clouds the future of the agency itself.

Firing of General Counsel Abruzzo

Although General Counsel Abruzzo’s term was scheduled to last until July of this year, her early removal comes as no surprise since President Biden made a similar move at the start of his presidency by removing Trump-appointee General Counsel Peter Robb on Inauguration Day. At the time, President Biden’s removal of Peter Robb was an unprecedented move that signaled his determination to quickly make major changes to the Board.

The General Counsel is the lead prosecutor in the country when it comes to addressing labor violations and is responsible for paving the way for the development of labor law by presenting issues for the Board to decide on. During her tenure, General Counsel Abruzzo directed the agency to reverse course on issues that had been left untouched for decades. Most recently, this was accomplished by the Board overturning a 70+ year precedent that protected employers’ right to hold captive audience meetings and a nearly 40-year-old precedent that protected certain employer statements regarding potential changes in the way employees and employers can communicate once a union is recognized.

General Counsel Abruzzo and the Board were criticized by business constituents for allegedly “flipping the law” for the sake of their interests. After terminating General Counsel Abruzzo early, President Trump is expected to fill the role with a more employer-friendly mind in order to reinstate the longstanding precedent eviscerated by the Board during Abruzzo’s tenure.

Firing of Board Member Wilcox

The firing of Board Member Wilcox is an unprecedented move that signals major changes coming to the Board. Member Wilcox was recently confirmed to another term in 2023 that was slated to last until August 2028. Trump’s move was unexpected because, opponents argue, under current law the at-will termination of a Board member is not allowed. The legality of the move, of course, depends on who you ask.

The National Labor Relations Act (“NLRA”) states that Board members may only be terminated by the President “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” (Emphasis added.) This “multiple-layered” protection has been the subject of many lawsuits challenging the constitutionality of NLRB Administrative Law Judges (“ALJs”) and Board Members alike. Multiple lawsuits have been filed alleging that this special protection is unconstitutional for contradicting the President’s removal powers under Article II of the Constitution, due to the substantial executive power the Board wields. These lawsuits have yet to make their way to the United States Supreme Court. However,  Member Wilcox has vowed to pursue all legal challenges available to her to save her job, so it appears President Trump may be forcing the Supreme Court’s hand to address the issue.

President Trump’s removal of Board Member Wilcox is even more surprising considering the current makeup of the Board. Prior to Member Wilcox’s termination, there were already two open spots on the five-member Board, sufficient for President Trump to appoint enough Republican members to give the Board an “employer-friendly” majority. As such, his early termination of Member Wilcox may signal more drastic changes are to come. Currently, the Board only has two members: Board Chair Marvin Kaplan and David Prouty. The Board can only issue decisions if it has a quorum of three Board members. As such, in light of Member Wilcox’s termination, the Board is currently unable to issue decisions.

It is uncertain what kind of long-term effect this will have on federal labor law in general. While ALJs could still proceed with hearings on complaints of federal labor law violations, ALJ orders are left entirely toothless without the Board’s ability to affirm decisions and seek enforcement in federal court. Until President Trump appoints a new member to the Board, federal labor violations will essentially be held in limbo while the Board is unable to render final decisions.

If you have any questions about the effect of these moves on your business, please contact one of our labor and employment attorneys at Davis & Campbell at (309) 673-1681 (Peoria), (312) 995-7110 (Chicago), or (520) 677-7401 (Phoenix).