Background

The National Labor Relations Board’s mission is to fairly interpret and enforce the National Labor Relations Act, a law that protects private sector workers’ freedom of association. The NLRB is comprised of a five-member board, administrative law judges and a general counsel. The president nominates members of the Board for five-year terms, during which they decide cases through administrative proceedings. Similarly, the president nominates the general counsel, who is responsible for the investigation of unfair labor practice cases and supervising the NLRB’s 26 regional field offices during a four-year term.

In recent years, changes in the executive branch have resulted in significant fluctuations in NLRB policy and leadership. In regard to leadership, former President Joe Biden fired NLRB General Counsel Peter Robb on his first day in office, a move without precedent since the establishment of the Office of the General Counsel in 1947. In the following administration, President Donald Trump removed NLRB General Counsel Jennifer Abruzzo. However, President Trump went a step further and removed NLRB member Gwynne Wilcox, making history as the first president to dismiss a Board member before the end of their five-year term. While Wilcox challenged the constitutionality of her removal, the U.S. Supreme Court upheld President Trump’s action. With Wilcox’s removal, only Board Chair Marvin Kaplan and member David Prouty remain, leaving three open positions on the Board.

The significant swings in the NLRB’s leadership have resulted in major policy fluctuations from administration to administration. Under the Biden administration, the NLRB aggressively pushed pro-union only policies that tilted the playing field against merit shop contractors and free enterprise. Specifically, the Biden-era NLRB often favored organized labor at the expense of employers, including those in the construction industry who rely on fair and predictable labor regulations. Now, under the Trump administration, acting NLRB General Counsel William Cowen has rescinded ABC-opposed memoranda from the Biden administration, including Memorandum GC 24-01, Guidance in Response to Inquiries About the Board’s Decision in Cemex Construction Materials Pacific, LLC.

Looking ahead, Crystal Carey’s nomination to serve as the NLRB general counsel awaits U.S. Senate confirmation. However, future composition of the Board is uncertain as President Trump is yet to nominate Board members to fill the open positions. Traditionally, the president’s party holds a 3-2 majority on the five-member Board. However, in New Process Steel, the Supreme Court ruled that the NLRB needs three members to have a quorum, so with a two-person board, the current NLRB lacks the quorum needed to issue decisions.

Desired Outcome

ABC supports balanced policies that reflect the NLRB’s original mission. For ABC members, the Trump administration’s shake-up at the NLRB represents an opportunity to restore fairness and predictability in labor relations. ABC will continue to advocate for a balanced approach at the NLRB and oppose regulatory overreach that may threaten employees, employers and economic growth.