Uncertainty At The NLRB

On January 27, President Trump discharged the National Labor Relations Board’s (NLRB) General Counsel, Jennifer Abruzzo. This decision was expected and lawful, and is good news for employers. Ms. Abruzzo’s enforcement priorities were extremely progressive and, in many instances, ignored and significantly restricted the rights of employers. We do not yet know who the Administration will choose to replace Abruzzo, but we will keep you posted. 

The rest of the story brings employers uncertainty. 

In an unexpected move, President Trump also discharged NLRB Board Member Gwynne Wilcox. Board Members serve 5-year terms and can be removed, under the National Labor Relations Act, upon notice and hearing only for “neglect of duty or malfeasance in office.” Ms. Wilcox’s term did not expire until August, 2028. 

The decision to discharge Ms. Wilcox is unprecedented and will certainly lead to litigation over whether the President has the authority to remove a Board Member and whether Ms. Wilcox’s discharge was lawful. Bloomberg Law is reporting that the Office of Presidential Personnel contended in Ms. Wilcox’s termination letter that the NLRA’s limitation on the President’s authority to discharge NLRB Board Members conflicts with his constitutional duty to take care that laws are faithfully executed.

While this novel issue makes its way through the courts, the Board now consists of only 2 Members: Republican and Chair Marvin Kaplan, and Democratic Member David Prouty. Because the NLRB needs at least 3 Members to decide cases, Ms. Wilcox’s removal is significant. Cases established by the Biden Board cannot be undone, new law cannot be made, and pending cases will sit, undecided, until new Board Members are appointed and confirmed by the Senate. 

However, the NLRB Field Offices will continue to operate. Unfair labor practice charges will still be investigated, and election proceedings will continue. Once a new General Counsel is in place, employers can expect quick changes to the progressive enforcement policies previously adopted by Ms. Abruzzo. 

KZA attorneys are well versed in the workings of the NLRB. If you have questions or need guidance during this uncertain time, please contact us. Otherwise, stay tuned for more updates. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.