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President Trump Removes Democratic NLRB Member and General Counsel

Labor & Employment Publications

In the evening hours of Monday, January 27, 2025, President Donald Trump fired National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo and Democratic Board member Gwynne Wilcox. While the termination of General Counsel Abruzzo was expected, the termination of Wilcox, a Senate-confirmed Democratic NLRB member, is unprecedented and likely subject to legal challenge. The move also leaves the NLRB with only two members, Chair Marvin Kaplan, a Republican, and David Prouty, a Democrat, which means that the NLRB does not currently have a quorum to issue decisions or regulations.

Background

As General Counsel for the NLRB, Abruzzo had authority to determine what sorts of cases are prosecuted by the NLRB, which is responsible for enforcing and adjudicating disputes arising under the National Labor Relations Act (“NLRA”). It was widely anticipated that the new administration would remove Abruzzo, as President Biden similarly terminated Peter Robb, the General Counsel appointed during President Trump’s first term. Presidential authority to remove the NLRB General Counsel was affirmed by the United States Circuit Court of Appeals for the Fifth Circuit in 2022.

Wilcox was confirmed by the U.S. Senate in 2023, and her term was to end in August 2028. Under the National Labor Relations Act, the President can remove NLRB members “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”  Wilcox has stated that she will be pursuing “all legal avenues to challenge” her removal, which, she asserts, “violates long-standing Supreme Court precedent.” Wilcox’s removal follows on the heels of multiple legal challenges to NLRB’s authority under the NLRA, including by Amazon and SpaceX, who have argued that the NLRA violates Article II of the Constitution by limiting the President’s authority to remove board officials and that it violates due process because it gives the NLRB the authority to penalize companies without a jury trial. The Administration is expected to make similar arguments if Wilcox challenges her removal. In the meantime, the NLRB does not have a quorum to issue any decisions or regulations until the Senate confirms a replacement (or Wilcox is reinstated). It is unclear how quickly any challenge to her removal would move forward and what the result would be.

Impact on Employers

During her tenure, Abruzzo advanced many union- and employee-friendly interpretations of the NLRA on  subjects ranging from captive audience meetings, requiring employers to recognize a union based on signed authorization cards rather than through a secret ballot election; and the legality of noncompete agreements. She also directed the agency to seek harsher remedies against employers for violations of the NLRA. Her replacement will almost certainly revoke guidance issued by Abruzzo, change the NLRB’s enforcement priorities, and seek reversal of key NLRB precedents and regulations issued during the Biden administration.

Less clear is how quickly changes in the political landscape will be reflected in the NLRB’s case law and formal rulemaking. Wilcox’s removal, if it survives legal challenge, leaves three vacant seats to be filled by President Trump. Currently, there is no timeline for nominations or Senate confirmation of the nominees. Even after confirmation of any nominees, legal challenges to Wilcox’s removal and the structure of the NLRB itself may further complicate the situation.

We will continue to monitor and provide updates on ongoing litigation or Executive action regarding the NLRB. Please contact a Franczek attorney with any questions.