One week after his inauguration, President Donald Trump has taken additional moves to impact the National Labor Relations Board (NLRB) and the U.S. Department of Labor (DOL).

Trump Moves Quickly to Reshape the NLRB

As we expected, and reported here, President Trump has moved quickly to re-make the NLRB.  Almost immediately after taking office, the President named Republican board member Marvin Kaplan as Chair of the NLRB.  Kaplan will lead a Republican majority once President Trump’s nominees for the three open seats are confirmed by the Senate.

On January 27, 2025, Trump removed Jennifer Abruzzo as NLRB General Counsel.  The general counsel serves as the agency’s chief prosecutor and helps to shape the agency’s direction by deciding which unfair labor practice cases are advanced, as well as advocating for changes in Board law through enforcement priorities, statements on the law, and changes in the agency’s approach to cases internally and through the courts.  This move was expected and clears the way for the installation of a new General Counsel, one more in tune with the new Administration’s labor philosophy.  President Biden acted similarly; on his first day in office, he fired the GC appointed by President Trump in his first administration.  The NLRB undoubtedly will take a much more employer-friendly approach during the Trump Administration.  Jessica Rutter was elevated from Deputy General Counsel to Acting General Counsel, pending appointment of a new General Counsel.

Less expected, on January 28, 2025, Democratic NLRB member Gwynne Wilcox, the former chair and first Black woman to serve on the Board, was abruptly fired.  With the removal of Wilcox, the Board’s current composition is Chair Marvin Kaplan, a Republican, whose term expires in August 2025, and Member David Prouty, a Democrat, whose term is scheduled to expire in August 2026.  Under the Supreme Court’s ruling in New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010), if the Board has fewer than three sitting members, it lacks a quorum to issue decisions.  This prevents a Democrat-majority Board, which continued to exist until Wilcox’s removal, from issuing decisions that run counter to the changes that President Trump wants to make in the Board’s approach.

Trump Tests the Limits of Presidential Authority

Trump’s decision to fire Wilcox, who was confirmed by the Senate in September 2023 to a second term ending in August 2028, is sure to face legal challenge.  The National Labor Relations Act only allows the president to fire NLRB members “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”  Wilcox has already stated that she will be pursuing legal challenges to her removal. 

Trump Fires Inspectors General

The President also fired 17 inspectors general from more than a dozen government agencies.  This included the U.S. DOL’s Inspector General Larry Turner.  Inspectors general are tasked with finding fraud, abuse and misconduct in federal agencies, which includes monitoring actions of presidential appointees at the agencies. 

As with the removal of NLRB member Wilcox, these decisions are likely to face immediate and sustained legal challenge.  In 2022, Congress passed reforms that strengthened protections for inspectors general and made it harder to replace them with political appointees.  Inspectors general terms generally are not aligned with presidential election cycles so that they can maintain their independence.  The law requires Congress be given 30 days’ notice and detailed reasons for dismissing any inspectors general, all of which appear to be lacking in this week’s actions. 

Employer Takeaways

The NLRB’s General Counsel has sweeping authority to determine what sorts of cases are prosecuted by the agency, which is responsible for enforcing federal labor law governing most private sector U.S. employees’ right to unionize or take collective action to improve their working conditions.  While this change in leadership will not cause an immediate reversal of existing Board decisions or regulations, it will reverse  the plainly pro-labor agenda of the General Counsel’s Office under the Biden Administration, and, eventually, result in the reversal of many of the Biden-era NLRB’s precedent shattering decisions.  Many expect the Trump-era Board to go even further and modify or reverse even settled pro-union case law.

When installed, we expect the new General Counsel to promptly withdraw a number of General Counsel Memoranda (GC Memos) issued by Abruzzo.  Although GC Memos are not binding and do not have the force of law, they provide direction to the NLRB Regional offices on enforcement, signal priorities, and can help drive cases to the NLRB for precedent changing decisions.  An employer-friendly GC (and Board) may discourage unions from bringing issues before the Board to avoid reversal of union-friendly precedents.  For that reason, employers may see a downturn in union organizing petitions filed with the Board, and fewer unfair labor practice charges, as unions seek other avenues to address workplace issues.

Changes May Take Years

Even with these shifts, changes in NLRB rules may take years.  For example, a newly-appointed NLRB General Counsel may immediately target decisions and policies for reversal and that will impact enforcement priorities, but the GC does not have the power to overturn current precedent.  That can be accomplished only with: (1) a Board decision (which requires a case raising the issue to be before the NLRB for decision), (2) the issuance of new regulations, (3) appellate court decisions reversing the Board’s rulings, or (4) congressional action.  Thus, Biden-era union-friendly case law will remain on the books for some time, even as the President re-tools the NLRB to reflect his labor priorities, raising difficult issues for compliance.

Ballard Spahr’s Labor & Employment Group routinely provides guidance to clients on developments in federal, state and local labor and employment laws, including legislative and regulatory developments.  We regularly assist clients in updating their policies and practices to be compliant with recent developments.