Dive Brief:
- President Donald Trump took two steps to further reshuffle leadership at the National Labor Relations Board this week, dismissing General Counsel Jennifer Abruzzo and Democratic member Gwynne Wilcox.
- Abruzzo confirmed her dismissal in a statement published by NLRB Tuesday. Wilcox’s name has been removed from the section of the board’s website that lists all members, and a spokesperson confirmed in an email to HR Dive that Trump dismissed Wilcox on Monday.
- Trump previously named the board’s lone Republican, Marvin Kaplan, as its chairman on Jan. 21 to replace Wilcox in that post. Wilcox’s dismissal leaves the agency with three empty board seats and means that NLRB no longer has a quorum, rendering it unable to exercise certain powers.
Dive Insight:
Restaurant unions have looked to the board, when it had a Democratic majority, as a potential way to rebalance power between workers and employers. Recently, the NLRB found merit in complaints filed against Waffle House for alleged violations of the NLRA; Waffle House responded by suing, alleging the board’s structure was unconstitutional. Abruzzo, as general counsel, pursued a number of section 10(j) injunctions against Starbucks during the Starbucks Workers United Campaign, seeking court orders to reinstate fired workers and enjoin potential unfair labor practices.
Trump’s dismissal of Abruzzo had been anticipated in the weeks preceding his inauguration, according to attorneys who spoke to Legal Dive, mainly due to former President Joe Biden’s similar ousting of former NLRB general counsel Peter Robb in 2021.
The 9th U.S. Circuit Court of Appeals issued a 2023 decision in National Labor Relations Board v. Aakash, Inc. that held Biden had the power to do so and that no statute precluded at-will removal of NLRB’s general counsel. The court notably contrasted National Labor Relations Act statute regarding the general counsel with that of the five-member board; the law states that the president may remove board members “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”
Democratic members of the Congressional Labor Caucus called Trump’s dismissal of Wilcox an “unprecedented and illegal attack” that violated the NLRA as well as U.S. Supreme Court precedent.
“We call on President Trump to immediately reinstate Member Wilcox,” the legislators said. “If he refuses to do so, we are committed to utilizing all available tools to investigate and overturn this unprecedented action.”
Employer-side counsel similarly noted the unprecedented nature of Wilcox’s firing. In a blog post for Littler Mendelson, shareholder Jim Paretti wrote that the 1935 Supreme Court case held that Congress can lawfully limit removal of officials serving on multi-member independent agencies like NLRB only for cause.
“The termination of Member Wilcox is literally unprecedented, and it is unclear whether courts will ultimately hold that she was validly terminated for cause, or, more broadly, that the president has the authority to remove NLRB members for any reason, even in the face of the Act’s ‘cause’ provision,” Paretti said.
Michael Lebowich, partner at Proskauer, said in an email to HR Dive that he questioned the motive behind Wilcox’s dismissal, especially given that NLRB already had two open seats for Republican appointees. The loss of NLRB’s quorum, he added, could lead to backlogs and broader uncertainty at the board.
“While in the short term, some parties with matters pending before the Board may have some relief, the longer term implications of a complete standstill at the Board and the resulting uncertainty can actually be very difficult for organizations looking to move forward and make decisions on both day-to-day employment matters and large scale initiatives,” Lebowich said.
Wilcox had been part of a Democratic majority at NLRB that issued a variety of worker-friendly decisions during the Biden administration. This included a November decision holding that captive audience meetings in which an employer expresses its views about unionization violated the NLRA.
Editor’s note: Aneurin Canham-Clyne contributed to this article