Another Trump NLRB

Four things to look for in the short term.

Donald Trump has won the presidency for a second time. This means that the leadership of the National Labor Relations Board (“NLRB”) will change over to Republican hands. There are certain policy areas that Trump seems personally interested in, but labor law does not seem to be one of them. Thus, the direction of the NLRB is likely to be determined, not by Trumpian idiosyncrasies, but rather the usual Republican business interests.

In the next couple of months, look for the following possible actions:

1. General Counsel Abruzzo removed on January 20. Historically, NLRB GCs have been replaced after their term was over. But the Biden Administration departed from that norm in 2021 and removed GC Peter Robb from office on the first day of the Biden presidency. At the time, there was some uncertainty about whether that was legal, but the courts subsequently indicated that they will allow it. The Trump Administration is likely to follow the same course of action and remove GC Abruzzo on the first day of the Trump presidency.
   

2. New list of mandatory submissions to Advice. Whoever replaces Abruzzo should issue a memo that contains a new list of mandatory submissions to the Division of Advice. Abruzzo issued hers in August of 2021. GC Robb issued his in December of 2017. This list will indicate what NLRB precedents the new GC will try to change by bringing a test case to a newly-composed NLRB. Based on recent history, this list may include bringing cases with the hope of overturning (1) Stericycle and McLaren Macomb, which dealt with rules, like confidentiality and non-disparagement rules, that interfere with protected activity, (2) Lion Elastomers, which dealt with the standard for determining when the way an employee engages in protected activity becomes so offensive or problematic that it loses protection, and (3) Fresh & Easy, which dealt with the circumstances in which an employee, acting alone, should be considered to be engaging in concerted activity.
   

3. Potential removal of Board members on January 20. As with the GC, historically, the five members of the NLRB have been replaced only after their term is over. The NLRA states that these Board members can be removed by the president for “neglect of duty or malfeasance in office, but for no other cause.” But the boutique management-side legal theory of the moment is that these for-cause removal protections are actually unconstitutional. Thus, it is conceivable that the Trump Administration may decide to remove certain Board members on the first day of the Trump presidency, both to change the partisan composition of the Board and to create some amount of legal chaos around the agency.
   

4. Potential removal of high-level NLRB staffers. Republican policy people have made a lot of noise of late about changes to civil service classifications that would make it so that federal workers in the Senior Executive Service or federal workers who are below SES but still are deemed to have a significant policymaking function could be fired by the president. This would seem to describe the agency’s regional directors, the various division heads working under the General Counsel and certain other staffers.

Actions (1) and (2) are very likely to happen. Option (3) somewhat less so and option (4) even less so than that. But these are all, I think, within the realm of reasonably possible outcomes.

Beyond these outcomes, there are of course much more exotic possibilities. The president can effectively halt the operation of the NLRB by not appointing the three Board members necessary for a quorum. Trump did not do this the first time he was president and I haven’t seen any discussion to this effect, but it has happened before and could conceivably happen again. One reason to think this would not happen is that it may be more useful for Republican policy interests to have a management-friendly NLRB than to have no NLRB at all. After all, if the NLRB is put on ice, it cannot reverse the various precedents that the new GC will want to reverse.