Update (February 3, 2025): On February 1, President Trump fired Acting General Counsel Jessica Rutter. At this time, it is unclear who will serve as Acting General Counsel or who President Trump will ultimately appoint as General Counsel of the NLRB. We will closely monitor and report on further developments.
Late Monday night, President Trump made two major changes to the National Labor Relations Board (NLRB), both of which will cause a major shift in the political leanings of the NLRB and one that may substantially impact the president’s direct authority over government agencies. One of those changes, the firing of NLRB General Counsel Jennifer Abruzzo, was expected and somewhat surprising that it took this long. The other change, the firing of Board Member Gwynne Wilcox, was unexpected and unprecedented.
President Trump’s firing of Abruzzo will have the most immediate effect and has been established as within presidential authority. After President Biden took office, he almost immediately terminated the then-NLRB General Counsel Peter Robb, a Trump appointee. Court challenges to President Biden’s action failed, establishing the legal precedent that the NLRB’s general counsel serves at the pleasure of the president. As a result, Abruzzo is not expected to challenge her termination. Although her replacement has not yet been named, this action ends her authority over the agency and terminates her aggressive pro-union agenda.
For the time being, until President Trump announces his appointment for general counsel and the Senate confirms that nomination, Deputy General Counsel Jessica Rutter will serve as acting general counsel. Rutter will have the power to steer the agency toward a more employer-friendly position until the new general counsel is confirmed. President Trump’s general counsel could have an immediate impact by rescinding Memoranda issued by Abruzzo and by issuing new Memoranda that announce revised general counsel positions and correspondingly change initiatives and enforcement directives to the NLRB’s regional directors, who are part of the enforcement process. These changes are expected to be a dramatic shift from Abruzzo’s positions and more employer-friendly.
In continuing his plan of “shock and awe,” just one week into his term, President Trump fired Wilcox, one of the two remaining Democrat NLRB members. This action was unprecedented and most likely will be challenged in court. However, for the time being, Wilcox’s removal leaves the five-member board with only two members and without the requisite three-member quorum. Without a quorum, the NLRB cannot decide cases. Thus, Wilcox’s termination effectively prevents the NLRB (with a majority of two Democrat members) from issuing any additional decisions that could be contrary to President Trump’s agenda. An even more cynical view would consider it likely that such decisions would be “rushed” to be issued prior to Senate confirmation of forthcoming Trump appointments. As readers of our last post may recall, President Trump assumed office with two NLRB seats open, allowing him to nominate immediately two persons who (most likely) will be Republicans and, upon Senate confirmation, shift the NLRB to a Republican majority.
Relatedly, there are lawsuits pending across various federal courts challenging the structure of the NLRB and its Administrative Law Judges (ALJs) with respect to the president’s ability (or lack thereof) to fire NLRB board members and ALJs. The likely legal challenge to Wilcox’s firing also could result in a prompter resolution of these legal issues and potentially return executive power back to the president, where some claim it rightfully and constitutionally belongs under the Constitution.
If you have any questions about how these changes to the NLRB’s composition and priorities may impact your business, please contact the authors.