Employers Take Further Aim at NLRB’s Authority

Legal attacks against the NLRB’s authority continue to pile up as the agency’s existence as the country’s top labor regulator hangs in the balance. 

Anything but business as usual: President Trump’s unprecedented termination of Democratic Board Member Gwynne Wilcox left the Board without a quorum and largely unable to carry out its major adjudicatory and policymaking duties.  

What’s left? Exactly what business the Board can continue to conduct without a quorum remains an open legal question but, in the opinion of several employers, the answer appears to be not much.

• Since Member Wilcox’s termination, several employers with pending cases have filed new arguments claiming cases cannot proceed without a quorum – even if those cases are below the Board level and in the hands of administrative law judges or regional directors. 

• Conducting elections was one Board function expected to continue without a quorum. Yet, in one recent filing, an employer claimed that the regional director cannot certify a union election victory at an employer store arguing the Board cannot legally delegate its authority without a quorum. 

The bottom line: If a federal judge agrees with the arguments being raised by employers, the Board may soon find itself unable to do much of anything until new members are nominated and confirmed, leaving labor law enforcement in limbo for the foreseeable future.