President Trump continued to make waves just over a week into his presidency with his decision earlier this week to fire the chair of the National Labor Relations Board (NLRB), Gwynne Wilcox. This unprecedented decision came alongside Trump’s firing of NLRB General Counsel Jennifer Abruzzo.
The National Labor Relations Board is an independent federal agency that was created to enforce the National Labor Relations Act (NLRA), a 1935 law which guarantees the right of “most private sector employees to organize, to engage in group efforts to improve their wages and working conditions, to determine whether to have unions as their bargaining representative, to engage in collective bargaining, and to refrain from any of these activities.” The Board has five members, each appointed by the president to 5-year terms with Senate approval. As a result of Wilcox’s termination, the NLRB currently only has two members. Under law, the Board needs a quorum of three members to make any decision.
In addition to the changes at the NLRB, Trump also fired two out of three Democratic commissioners of the Equal Employment Opportunity Commission, the federal agency that enforces civil rights law in the workplace.
Wilcox’s firing was met with shock and anger from union leaders, including AFL-CIO president Liz Schuler. In a statement, she wrote that Wilcox’s firing “is illegal and will have immediate consequences for working people.” She added that the president had effectively hobbled the board, leaving workers “on their own in the face of union-busting and retaliation.”
Wilcox told Bloomberg that she “will be pursuing all legal avenues to challenge my removal, which violates long-standing Supreme Court precedent.”
Fortune spoke with top employment lawyer Peter Rahbar about the consequences that President Trump’s decision will have on the NLRB and the workforce at large.
This interview has been lightly edited for clarity and length.
Fortune: How big of a deal is this?
Rahbar: It’s potentially a big deal in several ways. First, the firing of a sitting board member is completely unprecedented. The firing of the general counsel, however, does have precedent. President Biden did the same thing upon taking office, and his power to do that was upheld.
The power to fire a member has never been exercised over the NLRA and it’s not a power the president has. It’s contrary to long-standing law that was established and affirmed by the Supreme Court in a 1935 case.
These agency members, who are essentially members and judges on labor issues, are protected by acts of Congress and insulated from firing by the president to maintain their independence. This is clearly not only unprecedented, but an attempt to broaden presidential power and degrade congressional checks on presidential power. That’s the bigger story here.
What happens now? What are the repercussions of this?
The firing creates two issues. First is the issue of: Does the president have the power to do this? Second, it basically paralyzes the board because under 2010 Supreme Court precedent, the board can’t do business without at least three members. And right now, the board is left with two members. To the extent that this administration is seeking to paralyze an agency that is viewed as friendly to labor—they’ve now done that.
Even when they do have enough members to do business, whenever that may be, it’s not as if the firing was immediately followed by new appointments—in case anyone didn’t notice that. So whenever that may be, the board’s going to have a huge backlog of work to catch up on and it’s going to be tied up in legal challenges.
How will this affect U.S. labor unions moving forward?
Unions are [going to be] looking for the support of the board and establishing new law or upholding labor laws, [and] that they’re not going to be able to do that. They’ll be able to litigate cases up to a certain point, but the full board will not be able to decide on anything.
Ultimately, the forum where [unions] have to resolve their disputes has been disabled. In terms of tilting the balance of power in the worker employer relationship, it’s now been significantly tilted towards employers. I mean, essentially, [employers] can violate the law and force unions to sue them and enter into litigation that may never end.
What are you expecting to happen to the NLRB over the next four years?
Corporations hate the NLRB. They view it as a real difficult agency to deal with. It’s been viewed as traditionally pro-worker. That isn’t always true but I understand where it comes from. But that certainly doesn’t mean it shouldn’t exist.
I think the Trump plan here is to really defang it and render it as powerless as possible. There are a couple ways to do that. One would be what happened yesterday: to put it in a position where it doesn’t have a quorum, and leave it there as long as possible. Then the other would be through budgetary means. And I think that’s probably going to be part two of what we see here, to the extent that there’s these broad bans on funding for agencies with agendas. Based on what I’ve seen,the NLRB is certainly going to be tucked into that. We’ll see some major funding-like choke holds on the agency. I don’t think it’s going to be an easy or good four years for the board.
What are you expecting to happen to the labor landscape in the U.S. over the next four years?
It’s going to be a very tough four years for workers.
We’ve already seen a dramatic effort to strip down worker protections against discrimination. Obviously there’s been these attacks on DEI, but I think actually DEI is just the headline. The real attack is to go after equal rights legislation and protections.
Certainly this administration is not going to do anything to broaden protections for workers because that’s viewed as more regulation and anti-corporate interests. I think workers need to buckle up and companies are going to have a difficult time–they are already having a difficult time. Because the administration is saying they need to treat workers one way while their own workforce is saying, ‘Hey, we want to be treated a different way.’ I know from talking to clients that this is already causing a lot of problems for corporate leaders. How to balance this line of managing and motivating their own workforces while trying to stay out of the spotlight of this very vindictive government.
