Labor Board Chair’s Term Ending Means an NLRB of One for Now

When National Labor Relations Board Chair Marvin Kaplan’s term ends at the close of Wednesday, the board will have just one sitting member for only the second time in the agency’s 90-year history.

Kaplan was President Donald Trump’s first nominee to the NLRB in 2017 and has served as board chair since January.

Without Kaplan, the board is left with David Prouty, a Democratic NLRB member appointed by President Joe Biden, and four empty slots. The board will also be without a chair unless Trump names Prouty to that position.

The board dwindling to a single member is the result of Trump’s approach to the NLRB during his second term, which started with the unprecedented firing of member Gwynne Wilcox that robbed the board of the quorum necessary to decide cases.

“It is a combination of hostility and aggressive neglect that’s led us to this situation,” said Lauren McFerran, board chair during the Biden administration.

The White House didn’t respond to a request for comment.

Trump started his second presidency with two open NLRB seats, giving him the ability to flip partisan control of the board by appointing a pair of Republican members. That would have positioned the GOP-majority board to begin the work of rolling back pro-union precedent set during the Biden administration as appropriate cases came before it.

But Trump’s decision to terminate a sitting member led to the NLRB issuing only six rulings since his inauguration, compared to 94 decisions handed down during a comparable period following Biden’s inauguration.

Trump terminations have disrupted other agencies. The Equal Employment Opportunity Commission and the Merit Systems Protection Board don’t have enough members to fully function due to members getting fired.

Although a district judge ruled that Trump’s dismissal of Wilcox violated federal law, the US Supreme Court has blocked her return to the board as she proceeds with her lawsuit challenging the firing.

Wilcox’s case is pending before the US Court of Appeals for the District of Columbia Circuit, but even if she wins there, the high court’s order will keep her sidelined until the justices weigh in.

The board previously dropped to a single member—Democrat Wilma Liebman—in 2002, during a transitional period from when members who were serving on recess appointments left , according to NLRB data. The Senate had already confirmed other members, but they didn’t formally join Liebman until she had served alone for about three weeks.

New Blood

In July, Trump nominated Scott Mayer, chief labor counsel at the Boeing Co., and James Murphy, a former career NLRB lawyer, to fill two open Republican board seats.

The Senate Committee on Health, Education, Labor and Pensions can act on those nominees when lawmakers return from their month-long August recess next week. Committees typically vote to advance nominees for consideration by the full Senate sometime after they hold hearings to collect testimony from candidates.

Kaplan’s exit gives Trump another seat on the board to fill.

If Mayer and Murphy win confirmation, they’ll test a long-standing NLRB tradition to not change precedent without at least three members voting in the affirmative.

Regardless of how soon the Trump NLRB will begin revisiting pro-labor decisions set during the Biden era, both unions and management should be concerned about the board continuing to lack a quorum, said McFerran, now a senior fellow at the Century Foundation.

“I don’t think anyone can realistically hope that a Republican board will run out of time to advance its priorities,” she said. “In the meantime, we lose the 80% of decisions that are routine, unanimous, and get people to the resolutions of their disputes.”

Top Lawyer Spot

In addition to firing Wilcox, Trump cleared the way to install a new NLRB general counsel by axing GC Jennifer Abruzzo in January.

Two months later, he nominated Morgan, Lewis & Bockius LLP attorney Crystal Carey to become the agency’s top lawyer.

But Carey’s confirmation hopes were clouded by aggressive questioning and criticism from a key Republican senator during her July confirmation hearing. The committee subsequently advanced two other nominees who appeared with Carey, but she hasn’t been scheduled for a panel vote.

William Cowen, a former Republican board member who later worked as regional director in Los Angeles, has been serving as acting general counsel since February.

Federal law doesn’t pose much of an obstacle for Cowen to remain for the foreseeable future.

The Federal Vacancies Reform Act permits him to continue serving as acting general counsel through two failed GC nominations, plus 210 days after each, said Anne Joseph O’Connell, an administrative law professor at Stanford University.