What is the crisis at the National Labor Relations Board (NLRB)?

Updated February 7, 2025

Author: Sara Steffens, Worker Power Director (sara@progressivecaucuscenter.org) 

In the second week of his administration, President Trump sparked a crisis for workers across America by firing National Labor Relations Board member Gwynne Wilcox, along with NLRB General Counsel Jennifer Abruzzo. 

Abruzzo’s firing had been widely expected, both due to her assertive approach to protecting workers’ rights, and the fact President Biden had similarly dismissed previous NLRB General Counsel Peter Robb (a Trump appointee). 

But Trump’s controversial firing of Wilcox came as a surprise, as it is both unlawful and contradicts longstanding precedent. Wilcox was the first Black woman to serve on the board. Her removal left the board with only two members, lacking a quorum to make decisions and exercise its authority.

Under the 2010 Supreme Court decision New Process Steel L.P. v. National Labor Relations Board, the NLRB must have at least three members to issue decisions.

And two NLRB seats were already vacant: in December 2024, the Senate voted 50-49 against holding a vote to confirm a  third term for then-board chair Lauren McFerran, whose term expired on Dec. 16, 2024. Following the failed vote, Senate Democrats then withdrew a motion to consider Joshua Ditelberg for a Republican seat on the board.

The two remaining NLRB members are chair Marvin E. Kaplan, a Republican whose term expires August 2025, and David M, Prouty, a Democrat whose term expires August 2026. 

A week after firing Wilcox and Abruzzo, Trump fired Acting General Counsel Jessica Rutter, and appointed William Cowen as acting general counsel. 

Why does the NLRB matter?

The National Labor Relations Board is the only place that millions of private-sector workers can turn to uphold their rights under labor law, including the right to organize for better hours, wages and working conditions. The board protects not only union workers – it protects ALL workers who act together. 

There is no private right of action for workers whose rights under the National Labor Relations Act are violated – employees can’t directly sue their boss if, for instance, they are unlawfully fired for discussing their salary or trying to organize a union. Instead, workers must file an Unfair Labor Practice charge, or ULP, for investigation by a regional NLRB office.

The NLRB also plays a key role in the formation of new workplace unions. Although employers may choose to recognize a union based on a showing of majority interest (such as signed union cards vetted by a neutral party), both employers and workers have the right to request that the NLRB conduct a workplace election instead. 

What rights does the NLRB uphold?

The board is charged by Congress with enforcing the National Labor Relations Act, which protects workers’ rights to engage in a broad array of collective actions, including organizing or joining a union, bargaining a union contract, and going on strike.

One of the board’s key duties is to enforce Section 7 of the National Labor Relations Act, which guarantees workers "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities."

Cases decided by the NLRB have established that the Act protects a wide range of activities to address work-related issues, also known as “protected concerted activity.” This includes discussing wages and benefits, collectively refusing unsafe work, or joining together to speak to the media about problems at their workplace.

How does the NLRB operate?

The NLRB’s operations include the general counsel, who prosecutes cases and supervises 48 field offices, and the board, which decides cases. 

Even before Wilcox was fired, the NLRB had raised the alarm over its ability to keep pace with demand. Over the past few years, as workers’ interest in unions has jumped, the NLRB’s workload has grown but its budget has been largely flat, except for a $25 million increase in the 2023 fiscal year. Staffing of NLRB field offices has dropped by half in the past two decades, the agency reports.

Who serves on the NLRB?

Since its founding in 1935, the five members of the NLRB have been appointed by the president and confirmed by the Senate. Historically, the board is bipartisan, with three members typically from the president’s party, and the remaining two from the other party. Members serve staggered five-year terms to ensure continuity of a quorum.

The NLRB’s general counsel is also appointed by the president and confirmed by the Senate, and is responsible for investigating unfair labor practice charges, issuing complaints, and prosecuting cases before the Board.

Has a member of the NLRB been fired before?

No – no president has ever fired an NLRB board member. The National Labor Relations Act allows a board member to be dismissed only for “neglect of duty or malfeasance in office,” neither of which was alleged of Wilcox. Furthermore, the statute requires notice and hearing before removal, neither of which happened in Wilcox’s case.

The NLRA sets the general counsel’s term at four years, and does not explicitly bar their removal. But the act intentionally insulates board members from removal to preserve the Board's independence, and to prevent political interference in decisions that affect workers' rights.

When was the last time the board lacked a quorum?

In January 2012, three vacant seats left the NLRB without a quorum. President Obama made recess appointments to those seats. However a Supreme Court ruling in June 2014 invalidated  both the appointments and the decisions made by the NLRB during that period. The board was without a quorum from January 2012 until August 2014, when new members were confirmed. This left hundreds of cases unresolved, creating significant legal uncertainty and disrupting workers’ rights to organize and bargain collectively. 

Why is this happening?

The letter dismissing Wilcox and Abruzzo asserts broad presidential authority and argues that the NLRA’s restrictions limiting the removal of board members are invalid.  In what appears to be a misunderstanding of Abruzzo’s role, the letter states, “these two board members have not, in my judgment, been acting in a manner consistent with the objectives of my administration.” 

Legal observers have theorized that President Trump is attempting to set up a legal challenge to the Constitutionality of adjudicators at all independent agencies, testing a theory popular in conservative legal circles. The challenge, if successful, could set a precedent impacting not only the NLRB but also other independent multimember agencies, such as the Federal Trade Commission and the Federal Reserve Board, which rely on similar structures to ensure their independence from direct presidential control.

Independent adjudicators were created by Congress to insulate certain decision-making from the day-to-day influence of the president, former NLRB member Lauren McFerran notes in an essay for Slate. For instance, McFerran writes,  “A worker who has been unlawfully fired deserves to have their case heard by an impartial tribunal, not a panel of judges who face termination for enforcing the law against companies owned by presidential allies or donors.” This structure helps maintain public trust in labor law enforcement and other legal domains. 

In a parallel attack, in SpaceX v. NLRB, lawyers for Elon Musk and Jeff Bezos (Amazon) argue that the structure of the NLRB is unconstitutional, specifically citing the protections that shield board members and administrative law judges from removal by the president. The case is currently being heard in the Fifth Circuit and is expected to be appealed to the Supreme Court.

What are the consequences? 

Without a quorum on the board, workers can still file for union elections at their regional NLRB offices, and NLRB staff can conduct and certify union representation votes. However, corporations can take advantage of the lack of a board quorum to delay or deny a union certification indefinitely. This concern isn’t just theoretical: Already, lawyers for Jeff Bezos (Amazon) are arguing in an NLRB filing that a recent vote by Philadelphia Whole Foods workers to join UFCW is moot due to the lack of a quorum at the board.

For workers whose rights have been violated, the lack of a quorum at the NLRB significantly weakens the chance of effective penalties being levied against employers. For instance, if an employer illegally fires a worker who is trying to organize a union, the worker can file unfair labor practice charges. Regional NLRB staff could then investigate and recommend that the worker be returned to work with backpay. However, an employer seeking to avoid this outcome could delay this outcome by simply requesting a review by the full board, knowing such a review cannot proceed until the board regains a quorum. This forces the worker to choose between seeking other employment or enduring an indeterminate wait without pay or benefits.

Across the U.S., tens of thousands of newly organized workers are bargaining for their first union contracts with employers such as Amazon, Trader Joe’s, Starbucks and REI. These negotiations could be drawn out even further without the power of the NLRB to enforce employers’ obligations to bargain in good faith.

How do we fix it?

Even if a new third member is confirmed to restore a quorum at the NLRB, any decisions made could be subject to future litigation if courts agree that Wilcox was terminated illegally.  Reinstating Wilcox is the only remedy that quickly restores protection for millions of American workers’ rights. Further, reinstating Wilcox is essential to ensuring that board members can continue to exercise independent judgment without worrying that any decision that angers the president or his allies could lead to their removal. 

Wilcox is suing Trump, asking the DC District Court to declare her firing illegal and allow her to resume her service on the Board. Wilcox claims that the firing was unlawful and undermined the independence of the NLRB. Her lawsuit could have significant implications for the future of independent agencies.

The AFL-CIO is calling on all members of Congress to demand that President Trump reinstate Wilcox, and asking union members to urge their lawmakers to sign on to the demand.

Until the NLRB’s function is restored, workers unable to secure legal remedies will need to rely on increasingly disruptive tactics to build worker power – including corporate campaigns, shareholder engagement, marches on the boss, workplace actions and strikes.