New York (CNN) — The National Labor Relations Board, the independent agency that is supposed to enforce labor laws for most American workers, has been essentially shut down after President Donald Trump fired one of its board members, leaving it without the quorum it needs to function.
The NLRB oversees elections to form unions and also investigates complaints about unfair labor practices, such as firing workers for supporting unions. Of the five-seat board, two members’ seats were open because their terms expired.
President Trump’s unprecedented firing of a third board member has now left the NLRB without even the ability to form the simple majority needed for votes, effectively leaving it moribund.
“This is great for employers — they have a nonfunctioning NLRB,” said Cathy Creighton, an NLRB attorney during the Clinton administration and the director of Cornell University’s School of Industrial and Labor Relations co-lab in Buffalo, New York.
Formed 90 years ago, the NLRB was crucial to the growth of private sector unions in the middle of the last century.
But more recently it has overseen the decline of union representation at US businesses, as its enforcement powers have been limited by conservative courts and members of Congress eager to please businesses.
Despite its limitations, the agency had become a thorn in the side of some of the richest and most powerful people in the nation — notably Elon Musk, Trump’s key supporter both financially and arguably politically.
With Trump effectively dismantling the board, its limited powers have become — at least temporarily — non-existent.
The lack of a quorum at NLRB, and Trump’s actions to fire those he sees as anti-employer, has labor advocates particularly worried.
Critics of the move blame Musk for the action, pointing out this was not a tactic Trump used in his first term.
“The NLRB has got to be right at the top of his list for what agency Musk wants to destroy,” said Adam Shah, director of national policy at Jobs With Justice, a labor rights organization.
While Musk hasn’t taken credit, he took action even before the 2024 election to try to cripple the agency.
Musk’s SpaceX brought a case to federal court last year that argued the NLRB’s structure was unconstitutional and shouldn’t be allowed to act on unfair labor practice complaints. The SpaceX suit was an attempt to block the agency from moving against it for firing some employees. Nine SpaceX workers complained they were dismissed for writing management a letter asking them to publicly condemn Musk’s “harmful” behavior on social media. Musk’s Tesla has faced NLRB complaints about its treatment of unionizing efforts there as well, including after Musk tweeted that if employees joined a union they would lose their stock options.
Neither SpaceX nor Tesla responded to a request for comment.
“It wasn’t Trump that filed the lawsuit against the board challenging its constitutionality,” said Shah. “It was Elon Musk.”
And it’s not just Musk who has fought the agency in court. Amazon in recent years has also sued over the existence of the NLRB with the e-commerce giant still fighting the results of a union representation vote it lost in 2022 — the first time workers at one of its facilities voted to join a union.
What it means when the board can’t act
The board has not responded to questions about whether the Trump administration intends to appoint the board members needed to have at least a three-member panel. In a statement to CNN, the NLRB said it still has regional directors and investigators looking at complaints of unfair labor practices during labor disputes.
But without a board able to act, employers don’t have to worry about labor laws being enforced, even if agency investigators and judges find violations.
For example, at an Amazon facility in Bessemer, Alabama, a union lost two votes to represent workers. But an NLRB administrative judge found that Amazon violated laws requiring a free and fair election during the second vote, and ordered a third round of voting.
But since Amazon is challenging that finding, the matter was set to be considered by the full board, which could have set a date for a new vote. Without a quorum, Amazon doesn’t need to worry about facing a new vote.
Amazon also did not respond to a request for comment.
Trump has portrayed himself as the protector of blue-collar workers and has picked one of the most pro-union Republicans in the House, Lori Chavez-DeRemer, to be his Secretary of Labor. But Trump’s firing of NLRB member Gwynne Wilcox made clear that he wants the agency to be as pro-management as possible. A letter sent to Wilcox announcing her firing said she was let go because her record showed she was “unduly disfavoring the interests of employers large and small.”
Among the rules put in place by Wilcox and other Biden appointees that Trump criticized was one that prevented employers facing a union organizing vote from holding what are generally referred to as “captive audience” meetings, in which workers are required to sit through presentations laying out all the reasons they should vote against union representation, lest they lose their jobs entirely.
The letter from the Trump administration said that the rule improperly limited “employers’ rights to speak on the subject of unionization, raising serious First Amendment concerns about the censorship of important speech.”
The Biden appointees to the board also announced a rule that toughened the requirement that employers bargain with unions, even without the union having to win an election.
But rather than appoint his own members to two openings on the board who would then overturn recent pro-union actions, Trump has left the board essentially unable to function at all, or to defend workers against arguments from companies in court.
A win for employers, despite uncertainty
The lack of a quorum isn’t a complete win for employers, said Michael Lebowich, a partner at the law firm Proskauer, which generally represents employers in employment law cases.
Uncertainty is generally seen as bad for business, he said.
“In the short term, there is certainly some relief from some aspects of Biden board decisions,” said Lebowich. “The fact that those cases can’t be enforced is generally a good thing from a management perspective. But uncertainty in the long term is not good for business. You’re not going to get cases overturned until there’s a board.”
He said some companies may still feel a legal obligation to comply with the board’s previously issued union-friendly rules, even if there is no board that can to enforce them.
“From a compliance perspective, it’s not good to not comply with the law,” Lebowich said. He said he couldn’t comment specifically on the SpaceX case.
The SpaceX suit argued the NLRB was unconstitutional because its rules did not allow the president to fire board members or the agency’s administrative law judges who hear cases brought by the board’s staff after investigating complaints. The National Labor Relations Act, which governs the NRLB, allows the removal of board members only “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”
Already the lack of a quorum may have given a win to SpaceX in its federal lawsuit. An attorney for the NLRB last week wrote a letter to the court hearing the case saying essentially that it could no longer challenge SpaceX’s argument on its constitutionality due to the lack of a quorum.
But even if the court finds in favor of SpaceX’s position, it won’t necessarily order the agency out of existence, Creighton and Lebowich agree.
“It doesn’t mean turn off the lights,” said Creighton. “But it does severely weaken the NLRB.”
Fired board member fights back
Wilcox is the first NLRB member in the agency’s 90-year history to be fired. The first woman and the first Black member of the board to serve as its chairman, she has gone to court to try to get her seat back.
Wilcox was also fired without the required notice or hearing, and the letter firing her did not allege neglect of duty or malfeasance.
Even some conservative attorneys who have argued against labor law requirements in the past have questioned whether Trump should be allowed to fire sitting NLRB members.
Richard Epstein, a law professor at New York University, told CNN that he believes all collective bargaining agreements are “coercive.”
“But Trump is trying to smash the entire independent commission system,” he said. “He didn’t want to appoint two people who have his positions, he wants to get rid of (the NLRB) altogether. I would hope he would lose this. Institutional stability really counts.”
The-CNN-Wire
