Published in CT Law Tribune
President Trump’s unprecedented firing of a Democratic Member of the National Labor Relations Board (the “Board” or “NLRB”), Gwynne Wilcox, left the Board without a quorum and without the ability to hear cases or issue binding decisions. Consistent with today’s contentious world, Ms. Wilcox did not take this lying down. To the contrary, Ms. Wilcox filed suit two weeks later claiming her discharge is unlawful as it was not based on “neglect of duty or malfeasance.”
Wilcox’s claim is the President cannot fire independent agency members such as herself simply to cause the agency to comport with his political views. Wilcox claims her case is based on Supreme Court precedent that is almost 100 years old. Interestingly, two members of the Equal Employment Opportunity Commission (“EEOC”) suffered a similar fate and another similar suit was filed. As a result of these discharges, both the NLRB and EEOC (and maybe more agencies to come) are effectively paralyzed, with no timeline for when this might change.
While resolution of the claim that the President cannot fire administrative board members for such political reasons could take years, the future direction of the NLRB is already becoming clear. On February 3, 2025, a week after firing the ultra-liberal NLRB General Counsel Jennifer Abruzzo (which occurred on the same day Gwynne Wilcox was fired), President Trump appointed acting General Counsel William B. Cowen. Cowen wasted no time dramatically reshaping the NLRB. He issued a rescission memo overturning more than a dozen policy memos issued by Biden’s Administration. The reason offered for the dramatic rescission was the unsustainable backlog of cases caused by the former General Counsel. Cowen also said the Board would make further adjustments as deemed necessary, which likely suggests he (or a permanent General Counsel, once installed) will issue several additional policy memos. While the policy changes were anticipated, the rapidity and breadth of the changes is surprising.
What are Policy Memos?
A Board policy memo is a document published by the Board’s General Counsel (chief prosecutor) to provide guidance on how different labor law issues should be interpreted and enforced in the field. While the policy memos are not binding in the same manner as statutes or court decisions, they are highly influential as they guide the NLRB’s nation-wide network of Regional Offices’ investigations and priorities. Such memos instruct the field what cases are a priority and how to investigate and prosecute them and what cases are not a priority and should not be prosecuted.
Which Policy Memos Were Rescinded?
Among the policy memos that were rescinded (or rescinded pending further guidance) include:
- A policy memo stating certain college and university athletes (“student-athletes”) are employees under the National Labor Relations Act (“NLRA”);
- A policy memo regarding efforts to secure full remedies in settlement agreements;
- A policy memo regarding NLRA violations based on an employer’s electronic monitoring and algorithmic management of employees;
- A policy memo providing guidance in response to inquiries regarding the McLaren Macomb Board decision concerning the legality of non-disparagement and confidentiality clauses in severance agreements;
- A policy memo regarding non-compete agreements that violate the NLRA;
- A policy memo regarding securing full remedies for all victims of unlawful conduct;
- A policy memo regarding the Board’s ability to seek injunctive relief from federal courts;
- A policy memo clarifying universities’ and colleges’ disclosure requirements under the NLRA and the Family Educational Rights and Privacy Act;
- A policy memo regarding the legality and potential repercussions of non-competition agreements and “stay-or-pay” provisions;
- A policy memo regarding ensuring settlement agreements sufficiently address the public rights implicated in unfair labor practice cases;
- A policy memo regarding the rights and remedies of immigrant workers under the NLRA;
- A policy memo providing guidance in response to the Board’s decision in Cemex Construction Materials Pacific, LLC (a significant decision regarding the union representation election process);
- A policy memo regarding an employee’s right to refrain from captive-audience meetings and other mandatory employer meetings;
- A policy memo allowing mail-ballot elections;
- And several others.
What Comes Next for the Board?
While Jennifer Abruzzo was the Board’s General Counsel, the Biden Administration’s NLRB carried out arguably the most pro-employee and assertive agenda in the Board’s history. The rescission of nearly all of her policy memos confirms the anticipated change in the prosecutorial stance towards employers under Trump. When explaining the change, Cowen took a not-so-subtle shot at the Board’s rigorous enforcement efforts during the Biden administration by stating “if we attempt to accomplish everything, we risk accomplishing nothing.” Such a statement seems to confirm what many expected: Trump’s Board will take a far less aggressive approach when it comes to prosecuting businesses, a welcome reprieve for employers.
As we explained above, the Board is effectively paralyzed due to the firing of Democratic Member Gwynne Wilcox. The termination left the Board with just two members and is therefore, under its own rules, without the necessary quorum to make rulings. As a result, the current NLRB will be unable to support any of the policy changes urged by the General Counsel. Some believe disabling agencies from acting seems to be a strategy of the new Administration. If this is true, the backlog of cases may continue, but for a new reason.
As of now, no new members have been nominated to the Board. But there is good news. Since the President and the Senate are controlled by the same party, confirmation of new members could be fairly quick. However, it is unknown if such a direction is the plan of the Administration.
So, will Trump appoint additional members to restore a quorum and allow the Board to enact their pro-employer agenda by issuing decisions of their own and consequently overturning decisions from the previous administration? Or will Trump leave the Board in limbo, strategically preventing it from functioning at all? Only time will tell.
Employer Takeaways
One thing we do know is the Board has been here before. In 2012, the Board lacked a quorum, albeit for very different reasons. The unfortunate result for businesses, unions, and employees was uncertainty. Operating a business without confidence about the legality of one’s acts can stymie growth. It makes all parties uncertain of how best to advance their agenda and evaluate whether their acts are strongly supported or not. Such a concern may be an impetus to resolve this issue sooner rather than later.
Brody and Associates regularly advises its clients on all labor management issues, including collective bargaining strategies, and provides union-free training and counsel. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
