The National Labor Relations Board (NLRB), the independent agency designated to enforce labor laws for the majority of American workers, has effectively come to a standstill following President Donald Trump’s dismissal of one of its board members. This action has resulted in the agency lacking the necessary quorum to operate.
The NLRB is responsible for overseeing union formation elections and investigating complaints related to unfair labor practices, such as the termination of employees who support union activities. Out of the five-member board, two positions were already vacant due to expired terms. With the unprecedented firing of a third member by President Trump, the NLRB is unable to achieve the simple majority required for voting, rendering it largely inactive.
“This situation is advantageous for employers, as they now have a nonfunctioning NLRB,” remarked Cathy Creighton, a former NLRB attorney during the Clinton administration and current director of Cornell University’s School of Industrial and Labor Relations co-lab in Buffalo, New York.
Established 90 years ago, the NLRB played a vital role in the expansion of private sector unions throughout the mid-20th century. However, in recent years, it has witnessed a decline in union representation within American businesses, as its enforcement capabilities have been curtailed by conservative courts and lawmakers seeking to appease corporate interests.
Despite its constrained powers, the agency had become a source of contention for some of the wealthiest and most influential figures in the United States, particularly Elon Musk, who has been a significant financial and political ally of Trump.
With Trump’s actions effectively dismantling the board, the agency’s limited authority has now become, at least temporarily, nonexistent.
The absence of a quorum at the NLRB, coupled with President Trump’s decision to dismiss members perceived as unfavorable to employers, has raised significant concerns among labor advocates. Critics blame Elon Musk for influencing this situation, noting that this aggressive tactic was not employed by Trump during his first term.
“The NLRB is likely at the forefront of Musk’s agenda for agencies he aims to dismantle,” stated Adam Shah, director of national policy at Jobs With Justice, a labor rights organization. Although Musk has not publicly claimed responsibility, he has taken steps to undermine the agency even before the 2024 election.
Last year, Musk’s SpaceX filed a case in federal court arguing that the NLRB’s structure is unconstitutional and therefore should not be permitted to address complaints of unfair labor practices. This lawsuit was a strategic move to prevent the agency from taking action against SpaceX for allegedly terminating employees. Nine workers at SpaceX reported being fired for requesting that management publicly denounce Musk’s “harmful” behavior on social media. Additionally, Musk’s Tesla has faced NLRB complaints concerning its treatment of unionization efforts, particularly following Musk’s tweet suggesting that employees who joined a union would forfeit their stock options.
Neither SpaceX nor Tesla responded to inquiries for comment. “It wasn’t Trump who filed the lawsuit challenging the board’s constitutionality; it was Elon Musk,” Shah emphasized.
Moreover, Musk is not the only corporate leader taking legal action against the agency. In recent years, Amazon has also challenged the NLRB’s legitimacy while continuing to contest the results of a union representation vote it lost in 2022 — marking the first instance of workers at one of its facilities voting to unionize.
Implications of the Board’s Inability to Act
The NLRB has not clarified whether the Trump administration plans to appoint members necessary to establish at least a three-member panel. In a statement to CNN, the NLRB confirmed that it still has regional directors and investigators addressing complaints related to unfair labor practices amid labor disputes.
However, the inability of the board to function means that employers face little risk of labor law enforcement, even if agency investigators and judges identify violations. For instance, at an Amazon facility in Bessemer, Alabama, a union lost two votes aimed at representing workers. An NLRB administrative judge determined that Amazon had violated laws ensuring a free and fair election during the second vote and mandated a third voting round. Yet, as Amazon is contesting this ruling, the case was slated for consideration by the full board, which could have set a new vote date. Without a quorum, Amazon is not obligated to confront a new election.
Amazon has also not provided a comment regarding this situation.
President Trump has positioned himself as a champion of blue-collar workers, appointing Lori Chavez-DeRemer, a prominent pro-union Republican, as his Secretary of Labor. However, his dismissal of NLRB member Gwynne Wilcox underscores his intent for the agency to adopt a pro-management stance. A letter notifying Wilcox of her termination cited her record as showing “undue favoritism towards the interests of employers, both large and small.”
Among the regulations established by Wilcox and other Biden appointees that Trump criticized was a rule prohibiting employers from conducting what are typically known as “captive audience” meetings. In these meetings, employees are required to attend presentations outlining reasons to oppose union representation, under threat of job loss. The Trump administration’s letter argued that this rule improperly restricted “employers’ rights to discuss unionization issues, raising significant First Amendment concerns regarding censorship of essential speech.”
Additionally, Biden’s appointees to the board introduced a rule that strengthened the requirement for employers to negotiate with unions, even if the union had not won an election.
Instead of appointing his own members to fill two vacancies on the board who could potentially overturn recent pro-union measures, Trump has effectively rendered the board nonfunctional and unable to defend workers against corporate arguments in court.
A victory for employers, even amidst uncertainty
The absence of a quorum does not equate to a definitive victory for employers, according to Michael Lebowich, a partner at the law firm Proskauer, which typically represents employers in employment law matters. He emphasized that uncertainty is generally detrimental to business operations.
“In the short term, there is certainly a sense of relief regarding some aspects of the Biden board’s decisions,” Lebowich noted. “The inability to enforce these cases is, from a management standpoint, a positive development. However, long-term uncertainty poses challenges for businesses. Without a functioning board, overturning cases is unlikely.”
Lebowich pointed out that some companies may still feel legally obligated to adhere to the union-friendly regulations previously established by the board, despite the absence of enforcement capabilities.
“From a compliance standpoint, failing to follow the law is not advisable,” he stated, adding that he could not comment specifically on the SpaceX case.
The lawsuit brought by SpaceX contended that the National Labor Relations Board (NLRB) was unconstitutional, as its regulations do not permit the president to dismiss board members or the agency’s administrative law judges who adjudicate cases following investigations of complaints. The National Labor Relations Act, which governs the NLRB, stipulates that board members can only be removed “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”
The current lack of a quorum may have already benefited SpaceX in its federal lawsuit. An attorney representing the NLRB recently informed the court that it can no longer contest SpaceX’s constitutional argument due to the absence of a quorum.
However, even if the court rules in favor of SpaceX, it does not necessarily mean that the agency will be dissolved, as both Creighton and Lebowich concur. “It doesn’t mean turn off the lights,” Creighton remarked. “But it does significantly undermine the NLRB.”
Dismissed board member mounts a defense
Wilcox has made history as the first member of the National Labor Relations Board (NLRB) to be dismissed in the agency’s 90-year existence. She is notable for being both the first woman and the first Black individual to hold the position of chairman. In an effort to regain her position, she has taken legal action.
Her termination occurred without the legally mandated notice or hearing, and the dismissal letter did not cite any allegations of neglect or misconduct.
Even some conservative legal experts, who have previously challenged labor law mandates, have raised concerns about whether former President Trump possesses the authority to remove current NLRB members.
Richard Epstein, a law professor at New York University, expressed to CNN his view that all collective bargaining agreements are inherently “coercive.” He stated, “However, Trump seems intent on dismantling the entire independent commission system. He is not merely seeking to appoint two individuals who share his viewpoints; he aims to eliminate the NLRB entirely. I hope he fails in this endeavor, as institutional stability is crucial.”