As expected, the Trump administration has shifted the National Labor Relations Board (“NLRB”) into a new era marked by notable changes that will reshape the Board.
The first and most significant of these changes is the termination of Board Member Gwynne Wilcox. The second is the termination of General Counsel Jennifer Abruzzo. The removal of Wilcox leaves the NLRB down to two Members, a Democrat and a Republican, and without a quorum for decision making and other actions until the President fills at least one of the three current vacancies. These changes raise many questions as to what is in store for the NLRB and its ability to perform its main functions.
As discussed further below, employers should consider the impact of these decisions on pending cases before the Board, consider asserting affirmative and procedural defenses early and often, and stay aware of rapidly developing changes expected to take effect over the coming months.
The Termination of Board Member Wilcox
President Trump’s unprecedented termination of Board Member Gwynne Wilcox is significant for several reasons. Wilcox was one of the two Democratic Members of the Board following the expiration of the terms of former Chair Lauren McFerran, who the Senate failed to confirm for a new term last month, and the vacancy created by the expiration of Member John Ring’s term in December 2022. Wilcox began her most recent term in September 2023, which was set to terminate in August 2028. Her termination after serving less than two years has left many questions as to the validity of her departure and the future of the Board.
The National Labor Relations Act (“NLRA”) permits the removal of a Board Member upon notice and a hearing for “neglect of duty or malfeasance in office, but for no other cause.” Such a statutory restriction on removal from office was affirmed by the Supreme Court in 1935, in Humphrey’s Executor v. United States. Certain news outlets have reported that the White House offered its legal position on the termination in a private letter dated January 28, 2024 by the Office of Presidential Personnel. The Letter argued that the limitation in the NLRA to remove a Board Member conflict with the President’s Article 2 Constitutional duty to take care that laws are faithfully executed. Trump’s position in the letter cites to the Supreme Court’s 2020 decision in Seila Law LLC v CFPB, which held that removal shields are applicable to multi-member agency boards that are balanced on partisan lines and perform legislative and judicial functions, but that do not exercise executive powers. The White House argues that the NLRB is not balanced on partisan lines and exercises executive power, so the statutory protection is therefore not effective for the NLRB.
Abruzzo Out, Rutter In (for now)
In the early morning of January 28, 2025, Abruzzo was terminated from her role as General Counsel of the NLRB. While many expected Trump to terminate Abruzzo on his first day in office, her termination was nevertheless expected and came as no surprise. Abruzzo was one of the most aggressive General Counsel in recent memory, pushing her union-friendly agenda with a Democrat-majority Board. Her pro-labor policy memos sought to make “captive audience” meetings unlawful (GC 22-04 ), limit employers’ use of restrictive covenants GC 23-05, GC 23-08, GC 25-01), and expand the types of relief available to workers in unfair labor practice cases in a manner far more extensive than at any time in the NLRB’s ninety year history (GC 21-06, GC 21-07 & GC 24-04). Many of her positions have been adopted by the Board in its decisions, so reversals will need to be sought by way of future Board decisions.
Abruzzo memorialized her departure in a statement posted on the NLRB website. In her statement, Abruzzo also announced Jennifer Rutter as the now Acting General Counsel of the NLRB. Rutter was previously appointed as Deputy General Counsel in November 2024, by Abruzzo. If history is any predictor of what comes next, there is a good chance that the President will remove Rutter from the Acting General Counsel role in the near future. For now, we will wait to see who the Administration will appoint as the new General Counsel. Whoever the Administration appoints, it is likely the new General Counsel will seek reversal of many of the decisions reached by the NLRB that adopted Abruzzo’s policies and otherwise eliminated longstanding Board precedents.
Lack of a Board Quorum
With only two remaining Board Members, the NLRB currently lacks a quorum, and as a result, cannot issue decisions or carry out many other actions unless and until at least one more Member is nominated by the President and confirmed by the Senate.
Under New Process Steel, L.P. v. N.L.R.B., the Supreme Court majority held in 2010 that Section 3(b) of the NLRA requires that a delegee group must maintain a minimum membership of three Members in order to exercise the delegated authority of the Board, noting that the two Board Members in office at that time could not exercise delegated authority.
The NLRB is the only independent federal agency that does not have a mandated partisan structure, and yet, has managed to maintain one for years. Traditionally, the Board is composed of five Members, with a 3-2 balance between Members of the President’s party and a minority of Members from the opposition. Unlike the FTC and the SEC, there is no statutory requirement that the NLRB maintain bipartisanship, although each appointment would need to be approved by the Senate which could, through the approval, process continue the longstanding practice.
It remains to be seen if Trump will end the tradition of the bipartisan Board and seek to make it wholly Republican, or perhaps choose to not fill any of the vacancies and instead leave the Board without a quorum while the issue of the NRLA’s constitutionality is pending.
Impact on Employers Going Forward
The dramatic changes taking place at the Board raise numerous questions for how employers should address pending and future cases at the NLRB. We advise employers to be mindful of the following potential issues and strategies moving forward:
- Anticipate Pending Actions. Employers may be wondering about the fate of their pending cases or election petitions. Until there is at least one additional Board Member nominated by President Trump and confirmed by the Senate, there will not be any new decisions coming from the Board. Whenever that occurs, we can expect to see a wave of employer favorable decisions from the GOP majority (perhaps super majority) controlled Board.
- Assert New or Additional Affirmative Defenses to Preserve Them. Until issues as to the legality of Wilcox’s termination and the appointment of a new Board Member, which would allow the NLRB to act with a quorum, and new General Counsel are finally resolved, employers should plead affirmative defenses challenging the authority of the Board to act in order to preserve (and not waive) the issues for later assertion and argument. Similarly, in the election context, employers should assert objections pre and post-election to the Regional Director’s authority to act on behalf of the Board to process election petitions, conduct elections, rule on election objections and certify election results while the Board currently lacks a quorum of at least three Members, and arguably may be without a lawfully appointed quorum even once Wilcox’s seat is filled by President Trump. Depending on how the President chooses to fill the General Counsel’s vacancy, challenges may also be appropriate to the authority of the Acting or Appointed General Counsel.
- Stay Aware of Changes. When President Trump appoints a new General Counsel and restores the Board to a quorum (lawful or not), employers can expect to see drastic changes that will likely dismantle the NLRB’s decisions and regulations under General Counsel Abruzzo and the Biden nominated majority Board. Still, some of these changes will take time to accomplish or undo. For example, it takes time to revise and implement changed rules and regulations under the process required by the Administrative Procedures Act and there are often court challenges to implemented rule changes, etc. Also, it will take time for the new Trump appointed General Counsel to find and litigate new test cases to the Trump majority appointed Board to reverse the precedent of the Board’s decisions under President Biden. We advise employers to remain cognizant and prepared to adjust to these changes accordingly.