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On January 27th, 2025, President Donald J. Trump removed National Labor Relations Board (NLRB) Member Gwynne A. Wilcox. Consequently, this leaves the NLRB with only two members: Chair Marvin E. Kaplan, a Republican, and Member David M. Prouty, a Democrat. Additionally, that same day, the president removed NLRB General Counsel Jennifer Abruzzo. On February 1st, 2025, he also fired her successor, Acting General Counsel Jessica Rutter. As of the writing of this blog, the Trump Administration has not designated a new acting general counsel. Previously, the NLRB issued a new standard to assess the lawfulness of workplace rules.
Understanding the Current State of the National Labor Relations Board
According to Littler, the fact that the NLRB only has two members and no general counsel means that it is operating without a “quorum.” Due to that, the entity will be limited in certain operations for the foreseeable future. Specifically, the NLRB cannot:
- Issue any decisions,
- Issue regulations, or
- Take any action that requires NLRB approval.
As has been noted, President Trump has not announced any nominations to fill the vacancies. Meanwhile, former Member Gwynne Wilcox indicated she may bring legal action regarding her dismissal.
Lack of Quorum and the National Labor Relations Act
In summary, the National Labor Relations Act (NLRA) provides that a “vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board….”
Eventually, in 2011, the National Labor Relations Board (NLRB) planned for the possibility of maintaining operations without a quorum. In response, it created regulations to help facilitate “the normal functioning of the Agency during periods when the number of Board members falls below three….” These regulations were adopted in the wake of the U.S. Supreme Court’s (Court’s) decision in New Process Steel v. NLRB, 560 U.S. 674 (2010). Under the decision, the Court ruled that three NLRB members are required to maintain a valid quorum. Basically, the NLRB could not lawfully maintain its authority under a two-member panel.
Specifically, under the regulations that the NLRB created in 2011 when a quorum is lacking, the NLRB continues operations as normal “to the greatest extent permitted by law.” Explicitly, however, the ability to rule on motions for default judgment, summary judgment, or dismissal is shifted to the NLRB’s chief administrative law judge (ALJ) for a ruling. All ALJ rulings can be appealed directly to the NLRB after a quorum is established.
Employer Takeaways
In conclusion, in light of these developments, employers must continue to abide by workplace rules required by the National Labor Relations Board (NLRB). Nothing has changed regarding the regulations and rulings that the NLRB has made in the past. A good rule of thumb is ensuring that each work rule is followed as closely as possible to the initial NLRB rule to fulfill its intended purpose. Generally, clear justifications for these rules are essential to demonstrate their necessity and compliance with NLRB standards. Employers must also ensure they respect and protect employee rights, just as the NLRA outlines.
