Industry Group Tests Trump Agency Order in Labor Law Revamp Bid

An alliance of industry groups is attempting to engineer the immediate eradication of National Labor Relations Board precedents set during the Biden administration by capitalizing on President Donald Trump’s claim of control over independent agencies.

The Coalition for a Democratic Workplace has asked Attorney General Pam Bondi to direct the NLRB to ignore a swath of Biden-era decisions, as per Trump’s executive order asserting that the president and the AG have the power to interpret the law for all agencies.

CDW is advocating for a sharp break from the NLRB’s long-established practice of setting the rules for labor-management relations by interpreting the National Labor Relations Act in individual case decisions. The industry alliance’s aim is to trigger a sudden flip-flop on a mass scale, marking a rapid acceleration of the shifts in precedent following a change in partisan control of the board—a phenomena known in labor law circles as “policy oscillation.”

“The NLRB has been highly criticized in the past several decades for the whiplash effect it’s created by its policy oscillation,” said Anne Lofaso, a labor law professor at the University of Cincinnati and former agency attorney. “This would immediately change everything. This would not be a gradual change. The whiplash would be incredible.”

CDW Chair Kristen Swearingen said the NLRB’s shifts in policy have been fueled by the board members’ independence from the president and federal court deference to board rulings.

Trump’s order asserting control over independent agencies, together with the US Supreme Court’s landmark 2024 decision ending judicial deference to agencies’ reasonable interpretations of ambiguous laws, “provide a pathway to reduce wild swings in policy” at the NLRB, Swearingen said.

“The administration has a right to ensure the Executive Branch is only pursuing policies that align with the Constitution, the law, and Supreme Court precedent—whether that be in front of a federal court or an administrative law judge,” she said in a statement. “Moreover, we believe increased accountability to the courts and the president will reduce rather than increase the wild fluctuations in the Board’s positions.”

Undoing Biden-era Precedent

CDW targeted 15 Biden-era board rulings, including 14 that set new precedents.

The alliance’s hit list covers the most significant decisions handed down during the previous administration, such as those that created a new framework for imposing bargaining orders in response to employers’ labor law violations, required companies to reimburse workers for the financial consequences of unfair labor practices, barred management from holding mandatory anti-union meetings, and banned severance agreements that include waivers of NLRA rights.

The industry alliance made its requests public last month in a pair of letters. The first asked Bondi to order the NLRB to disavow the rulings. The second reiterated its repudiation request, and asked Bondi to direct the NLRB’s acting general counsel to change the agency’s litigation position in a pending appeals court case.

CDW resent the letters in May 7 after learning that previously it had inadvertently sent them to an invalid email address.

The Justice Department and the NLRB declined to comment.

Expanding Executive Power

Although the industry coalition’s request to have the attorney general dictate labor policy may seem extreme, it’s something that Trump’s February directive on executive branch control of independent agencies clearly invited, said Brandon Johnson, a law professor at the University of Nebraska.

“This is part of a pattern where Trump is claiming the president gets to decide what is and is not illegal,” said Johnson, who focuses on administrative law, the separation of powers, and the law of democracy. “That is a much bigger problem than an industry group trying to get changes to labor law.”

The only thing that’s surprising about the CDW letters is that the coalition bothered to send them at all, instead of doing something less transparent like going to Mar-a-Lago to lobby Trump or his associates, said Paul Gowder, a Northwestern University law professor who’s written books on the rule of law.

The actions CDW is advocating for flow from the unitary executive theory, which views the Constitution granting executive power to the president alone, Gowder said. That stands in contrast to how the NLRB and other parts of the administrative state have functioned since the New Deal, he said.

“In order to have economic regulation and labor regulation, we need to have external legal controls that aren’t just the president’s will,” he said.

Court Review

Discarding a raft of NLRB precedents under the direction of the attorney general would be vulnerable to legal challenge, running into Supreme Court decisions mandating that agencies must fully explain changes in policy, legal observers said.

Moreover, the NLRB would have problems justifying the blanket disavowal of case law by citing compliance with the attorney general’s order because nothing in the NLRA or Supreme Court precedents gives the AG authority to set federal labor policy, said Lauren McFerran, who served as NLRB chair during the Biden administration.

“The Supreme Court has repeatedly recognized that Congress empowered the board to develop and apply labor law,” said McFerran, now a senior fellow at the Century Foundation.

Taking labor law away from the NLRB will only lead to chaos, said Mark Gaston Pearce, who chaired the NLRB during the Obama administration. Companies and unions have long understood that an agency that independently regulates how they interact is essential for workplace stability and labor peace, he said.

NLRB members will be faced with a choice if they’re ordered by the Trump administration to summarily cast aside board precedents, said Pearce, a visiting professor at Georgetown University.

“If I were a board member in that situation, I would send a letter or make it known publicly that it is beyond the authority of the president and therefore I would not comply with that directive,” he said. “I cannot speak for what another board member might do.”