President Trump’s firing of a member at the National Labor Relations Board leaves the federal agency unable to perform its duties protecting the rights of U.S. workers and monitoring union elections, according to labor experts.
The agency is now down to two members, one below the minimum required to fully function, labor attorneys said, even as one of the country’s largest companies, Amazon, presses the NLRB to void the results of a recent union election due to the board’s downsizing.
“Right now the NLRB is not operational because there are only two out of five board members and the Supreme Court has ruled that they cannot operate with less than three members,” Cathy Creighton, director of Cornell University’s Industrial and Labor Relations Buffalo Co-Lab. and a former field attorney for the NLRB, told CBS MoneyWatch.
Congress set up the NLRB in 1935, during the Great Depression, to safeguard employee rights to collective bargaining. It oversees secret-ballot union elections and works to prevent and address unfair labor practices by private-sector employers and unions.
Illegal firing?
The Jan. 27 ouster of NLRB member Gwynne Wilcox came as a shock and left the independent federal agency without the required number of members to function.
“I handled cases where workers were fired and retaliated against for their conduct, but I never imagined that I would be the person being fired for doing my job,” Wilcox, 71, told CBS News in an interview Thursday.
Wilcox is suing Mr. Trump, alleging the president exceeded his authority in firing her and requesting that she be reinstated as an NLRB member. Her firing runs counter to a “Supreme Court precedent that has ensured the independence of critical government agencies,” according to the lawsuit filed on Wednesday in U.S. District Court for the District of Columbia.
The president’s bid to oust her from her Senate-confirmed position is “unlawful and unprecedented,” Wilcox said in a statement. “When Congress established the National Labor Relations Board almost 90 years ago, it made sure that the law would protect its independence from political influence. My removal, without cause or process, directly violates that law.”
Appointed to the NLRB in 2021 and confirmed by the Senate in September 2023 to serve another term through 2028, Wilcox was told in a letter that she had not performed “in a matter consistent with the objectives” of the president.
The White House press office did not respond to a request for comment.
Wilcox’s firing seems “an illegal termination,” with no notice or hearing, Cornell’s Creighton said, noting that federal law prohibits a president from getting rid of board members except in case of negligence or malfeasance.
How it affects workers
Some of the NLRB’s day-to-day work can continue, but the board itself “can’t order parties to pay remedies or recognize a union,” said Matthew Bodie, a professor of law at the University of Minnesota. “There are some people who are concerned that the Trump administration will take its time to fill those three positions, or not fill them at all, so it renders the agency toothless at some level.”
“We’ve never had this particular situation where it’s been rendered inoperative for lack of a quorum and what that means for workers,” added John Logan, a labor historian and professor at San Francisco State University’s Lam Family College of Business. “Do they exist only if there’s a bureaucratic framework to enforce them?” he asked of the legal protections granted workers.
Whole Foods union effort in jeopardy
The NLRB’s lack of a quorum is reason to overturn the results of a Jan. 27 election that had workers at a Whole Foods store in Philadelphia voting to unionize, the Amazon-owned grocery chain said in objections filed with the NLRB on Monday.
Whole Foods has accused the local union of not playing by the rules.
“The UFCW 1776 illegally interfered with our team members’ right to a fair vote at our Philly Center City Store. We have filed objections to these illegal actions and have asked the NLRB to set aside the results of the election,” Whole Foods told CBS MoneyWatch in a statement.
The filings by Whole Foods are in line with tactics employed by its corporate parent, the UFCW said.
“It’s similar to what they filed in other Amazon cases around the country,” UFCW Local 1776 President Wendell Young IV told CBS MoneyWatch. “This company is going to take advantage of Trump cleaning house,” Young said.
Amazon and Whole Foods are delaying in hopes of getting a business-friendlier NLRB, or “that ultimately the Supreme Court will have a different view than past courts,” he added of lawsuits filed by Amazon and Elon Musk’s SpaceX challenging the NLRB’s structure as unconstitutional.
“This might be an existential moment” for the U.S. labor movement, Bodie said.
