As the country pauses on Labor Day to honor the contributions of workers and the labor movement, the government watchdog that is responsible for protecting working people’s rights is facing a crisis. Both President Trump and his powerful corporate allies are waging war against this small, independent agency, threatening its ability to serve the public and undermining the power and voice of working people across the country.
What is the National Labor Relations Board and why is it important?
The National Labor Relations Act gives workers a legal right to form and join unions and to bargain collectively for better wages and working conditions. The act also protects workers from retaliation when they join together and speak up about unfair treatment, whether in a union or not. Almost all private sector workers—not just those who are in unions or want to be in a union—have important rights under this law.
The National Labor Relations Board (NLRB) is the agency that enforces this law. If a worker thinks their employer has violated their rights, they can come to the NLRB: the agency’s general counsel (GC) will investigate their case, and will prosecute the case if it appears that an unfair labor practice has occurred. If the parties can’t reach a settlement, the case is then tried before an agency judge and—ultimately—the National Labor Relations Board, which acts as a court to decide the case.
Importantly, the GC is the only one who can bring a case before the NLRB—workers can’t bring claims on their own. And the NLRB is the only court that can initially decide these cases—workers cannot bring these claims to other federal courts until the NLRB has spoken. The NLRB is the only game in town, so its work is critically important to make workers’ rights a reality.
What has happened to the NLRB this year?
The NLRB in recent months has faced relentless attacks, primarily from the Trump White House, but also from some of the biggest and most powerful corporations in the country that want to make sure there’s no one watching how they treat their workers.
President Trump’s unlawful actions have left the NLRB without a quorum and unable to decide cases.
The NLRB is supposed to have five members, and the U.S. Supreme Court has said it must have three members to decide cases. While the law says that board members can only be fired for misconduct (“malfeasance or neglect of duty”), in January, President Trump fired Board Member Gwynne Wilcox without cause. Because there were already two vacancies on the NLRB, this illegal termination left the NLRB without a quorum and unable to hear cases. So now while workers who want to join a union or who think their rights on the job have been violated can still come to the agency for help, unless their employer voluntarily cooperates with the NLRB’s proceedings, without a quorum, the workers’ cases will sit in limbo indefinitely. The agency currently has no way to compel employers to bargain with their workers’ union, or to stop unfair treatment on the job.
President Trump is taking away the NLRB’s independence.
The NLRB was designed by Congress to be an independent agency. That means that the agency is supposed to make decisions based on expert analysis of the law, not the whims of the president. The independence of agencies like the NLRB (and other similar agencies, such as the Federal Reserve Board or the Consumer Product Safety Commission) is important, because it allows them to serve the public good, even in the face of opposition from powerful political actors.
But President Trump is now taking unprecedented steps to control independent agencies. In addition to unlawfully firing agency leaders like Board Member Wilcox, he has issued executive orders asserting control over these agencies’ day-to-day operations. Independent agencies now cannot take legal positions in cases that the White House disagrees with. They have to submit their proposed regulations to the White House (which can change or block the proposals). The White House can defund particular agency activities on a project-by-project basis, and can install “White House liaisons” to monitor agency activities. These unprecedented intrusions on agency independence threaten the NLRB’s ability to provide due process to workers; hypothetically, the president could now stop the GC from pursuing a charge against a company owned by a political ally, or prevent a union from being certified at a company owned by a presidential donor.
Hypothetically, the president could now stop the GC from pursuing a charge against a company owned by a political ally, or prevent a union from being certified at a company owned by a presidential donor.
Big corporations such as SpaceX and Amazon are attacking the NLRB’s existence in court.
Even before President Trump took office, powerful corporate actors have been setting their sights on trying to dismantle the NLRB—and now they’ve gotten a crucial legal win that could hobble the NLRB.
Recently, when the GC has tried to prosecute these companies for violating their workers’ rights, their lawyers have gone to federal district court to try to stop the prosecutions, arguing that the NLRB is unconstitutional. Despite the fact that the U.S. Supreme Court affirmed the constitutionality of the NLRB almost ninety years ago, these companies are spending millions to argue otherwise. Their arguments vary—some claim that the protections from removal by the president that NLRB members and agency judges have are unconstitutional; others argue that the agency shouldn’t be able to award remedies without a trial by jury, or that the agency shouldn’t be able to have both a prosecutor (the GC) and adjudicators (the NLRB) in one agency. But the outcome they are seeking is the same: to get court orders stopping the NLRB from serving the public, and ultimately get the Supreme Court to revisit the agency’s constitutionality.
Unfortunately, this questionable legal tactic has paid off. The Fifth Circuit Court of Appeals recently ruled that the provision of the NLRA protecting the agency’s judges and board members from removal by the president is likely to be deemed unconstitutional, and that it would do “irreparable harm” to these big companies to allow the NLRB to continue prosecuting unfair labor practice charges against them until the Supreme Court decides this constitutional question (which could be many months away).
This troubling decision has real consequences for workers’ rights across the country. Because big companies such as Amazon and SpaceX have a presence all over the country, they can go to court in the Fifth Circuit and seek an injunction anytime they want to stop an NLRB prosecution, regardless of the facts of the case or where the affected workers reside. This development may effectively block the NLRB’s GC from bringing any major new cases, hobbling one of the few functions the agency could perform without a quorum.
What does the future hold for the NLRB?
Unfortunately, all signs indicate that the current and future Trump-appointed leaders of the NLRB have no real interest in pushing back on these attacks, and may even be willing to help hammer the nails into the agency’s coffin.
States are trying to step in and help workers, but Trump-appointed agency leaders may interfere.
With the NLRB incapacitated, some states are stepping in to try to fill the void and protect workers’ rights. Three states—California, New York, and Massachusetts—are considering “trigger laws” that would allow workers to turn to their state labor relations boards (which currently serve state public sector workers or other workers outside the jurisdiction of the NLRB) and file unfair labor practice charges there. But before any of these laws have come close to passage, the NLRB’s Trump-appointed acting general counsel has already taken the unusual step of issuing an unprompted public statement that these efforts “very likely would be preempted” by the National Labor Relations Act, strongly signaling that his office will try to legally challenge “trigger laws” that try to help workers advance their rights.
Trump may be putting the fox in charge of the henhouse.
President Trump has also announced his nominees to serve as the new general counsel and board members for the agency. Most concerning is the nominee for general counsel, Crystal Carey, who comes from the law firm Morgan Lewis—the leading firm arguing on behalf of companies such as SpaceX that the NLRB is unconstitutional. In her confirmation hearing before a Senate committee, Ms. Carey alarmingly refused to take a position on the constitutionality of the agency she seeks to serve, raising serious concerns about her ability to fulfill her duties and defend the agency and its important mission in court.
Where do workers stand this Labor Day?
Almost ninety years ago, Congress passed a landmark law guaranteeing workers the right to form and join a union, speak out about wages and working conditions, and bargain collectively for a better future. The NLRB has achieved lasting labor peace for our country by providing workers with a place to turn when employers retaliate against them for speaking up, or refuse to bargain in good faith with their chosen representatives. It has operated independently for decades, providing a fair and impartial path to facilitate smooth labor relations and hold lawbreaking employers accountable, regardless of how powerful or politically connected they might be.
But this year is different. It is no exaggeration to say that basic labor protections—internationally recognized as fundamental human rights—are in jeopardy in the United States. And it is fair to ask whether workers still have the basic rights that Congress enshrined into law so many years ago. With an anti-worker White House, chaos in the courts, and an uncertain future at the NLRB, Labor Day in 2025 seems less like a moment of celebration and more like a day of reckoning for workers’ rights.
Fortunately, the history that we honor on this important holiday teaches us that America’s workers are resilient and resourceful, and can command tremendous power when they stand together and support each other. While the tumultuous changes in federal labor law play out, workers still have a voice, and many ways to use that voice, in protest and in solidarity. Today of all days, our country should be listening.
Tags: nlrb, donald trump, Labor Day
An Unhappy Labor Day at the NLRB
As the country pauses on Labor Day to honor the contributions of workers and the labor movement, the government watchdog that is responsible for protecting working people’s rights is facing a crisis. Both President Trump and his powerful corporate allies are waging war against this small, independent agency, threatening its ability to serve the public and undermining the power and voice of working people across the country.
What is the National Labor Relations Board and why is it important?
The National Labor Relations Act gives workers a legal right to form and join unions and to bargain collectively for better wages and working conditions. The act also protects workers from retaliation when they join together and speak up about unfair treatment, whether in a union or not. Almost all private sector workers—not just those who are in unions or want to be in a union—have important rights under this law.
The National Labor Relations Board (NLRB) is the agency that enforces this law. If a worker thinks their employer has violated their rights, they can come to the NLRB: the agency’s general counsel (GC) will investigate their case, and will prosecute the case if it appears that an unfair labor practice has occurred. If the parties can’t reach a settlement, the case is then tried before an agency judge and—ultimately—the National Labor Relations Board, which acts as a court to decide the case.
Importantly, the GC is the only one who can bring a case before the NLRB—workers can’t bring claims on their own. And the NLRB is the only court that can initially decide these cases—workers cannot bring these claims to other federal courts until the NLRB has spoken. The NLRB is the only game in town, so its work is critically important to make workers’ rights a reality.
What has happened to the NLRB this year?
The NLRB in recent months has faced relentless attacks, primarily from the Trump White House, but also from some of the biggest and most powerful corporations in the country that want to make sure there’s no one watching how they treat their workers.
President Trump’s unlawful actions have left the NLRB without a quorum and unable to decide cases.
The NLRB is supposed to have five members, and the U.S. Supreme Court has said it must have three members to decide cases. While the law says that board members can only be fired for misconduct (“malfeasance or neglect of duty”), in January, President Trump fired Board Member Gwynne Wilcox without cause. Because there were already two vacancies on the NLRB, this illegal termination left the NLRB without a quorum and unable to hear cases. So now while workers who want to join a union or who think their rights on the job have been violated can still come to the agency for help, unless their employer voluntarily cooperates with the NLRB’s proceedings, without a quorum, the workers’ cases will sit in limbo indefinitely. The agency currently has no way to compel employers to bargain with their workers’ union, or to stop unfair treatment on the job.
President Trump is taking away the NLRB’s independence.
The NLRB was designed by Congress to be an independent agency. That means that the agency is supposed to make decisions based on expert analysis of the law, not the whims of the president. The independence of agencies like the NLRB (and other similar agencies, such as the Federal Reserve Board or the Consumer Product Safety Commission) is important, because it allows them to serve the public good, even in the face of opposition from powerful political actors.
But President Trump is now taking unprecedented steps to control independent agencies. In addition to unlawfully firing agency leaders like Board Member Wilcox, he has issued executive orders asserting control over these agencies’ day-to-day operations. Independent agencies now cannot take legal positions in cases that the White House disagrees with. They have to submit their proposed regulations to the White House (which can change or block the proposals). The White House can defund particular agency activities on a project-by-project basis, and can install “White House liaisons” to monitor agency activities. These unprecedented intrusions on agency independence threaten the NLRB’s ability to provide due process to workers; hypothetically, the president could now stop the GC from pursuing a charge against a company owned by a political ally, or prevent a union from being certified at a company owned by a presidential donor.
Big corporations such as SpaceX and Amazon are attacking the NLRB’s existence in court.
Even before President Trump took office, powerful corporate actors have been setting their sights on trying to dismantle the NLRB—and now they’ve gotten a crucial legal win that could hobble the NLRB.
Recently, when the GC has tried to prosecute these companies for violating their workers’ rights, their lawyers have gone to federal district court to try to stop the prosecutions, arguing that the NLRB is unconstitutional. Despite the fact that the U.S. Supreme Court affirmed the constitutionality of the NLRB almost ninety years ago, these companies are spending millions to argue otherwise. Their arguments vary—some claim that the protections from removal by the president that NLRB members and agency judges have are unconstitutional; others argue that the agency shouldn’t be able to award remedies without a trial by jury, or that the agency shouldn’t be able to have both a prosecutor (the GC) and adjudicators (the NLRB) in one agency. But the outcome they are seeking is the same: to get court orders stopping the NLRB from serving the public, and ultimately get the Supreme Court to revisit the agency’s constitutionality.
Unfortunately, this questionable legal tactic has paid off. The Fifth Circuit Court of Appeals recently ruled that the provision of the NLRA protecting the agency’s judges and board members from removal by the president is likely to be deemed unconstitutional, and that it would do “irreparable harm” to these big companies to allow the NLRB to continue prosecuting unfair labor practice charges against them until the Supreme Court decides this constitutional question (which could be many months away).
This troubling decision has real consequences for workers’ rights across the country. Because big companies such as Amazon and SpaceX have a presence all over the country, they can go to court in the Fifth Circuit and seek an injunction anytime they want to stop an NLRB prosecution, regardless of the facts of the case or where the affected workers reside. This development may effectively block the NLRB’s GC from bringing any major new cases, hobbling one of the few functions the agency could perform without a quorum.
What does the future hold for the NLRB?
Unfortunately, all signs indicate that the current and future Trump-appointed leaders of the NLRB have no real interest in pushing back on these attacks, and may even be willing to help hammer the nails into the agency’s coffin.
States are trying to step in and help workers, but Trump-appointed agency leaders may interfere.
With the NLRB incapacitated, some states are stepping in to try to fill the void and protect workers’ rights. Three states—California, New York, and Massachusetts—are considering “trigger laws” that would allow workers to turn to their state labor relations boards (which currently serve state public sector workers or other workers outside the jurisdiction of the NLRB) and file unfair labor practice charges there. But before any of these laws have come close to passage, the NLRB’s Trump-appointed acting general counsel has already taken the unusual step of issuing an unprompted public statement that these efforts “very likely would be preempted” by the National Labor Relations Act, strongly signaling that his office will try to legally challenge “trigger laws” that try to help workers advance their rights.
Trump may be putting the fox in charge of the henhouse.
President Trump has also announced his nominees to serve as the new general counsel and board members for the agency. Most concerning is the nominee for general counsel, Crystal Carey, who comes from the law firm Morgan Lewis—the leading firm arguing on behalf of companies such as SpaceX that the NLRB is unconstitutional. In her confirmation hearing before a Senate committee, Ms. Carey alarmingly refused to take a position on the constitutionality of the agency she seeks to serve, raising serious concerns about her ability to fulfill her duties and defend the agency and its important mission in court.
Where do workers stand this Labor Day?
Almost ninety years ago, Congress passed a landmark law guaranteeing workers the right to form and join a union, speak out about wages and working conditions, and bargain collectively for a better future. The NLRB has achieved lasting labor peace for our country by providing workers with a place to turn when employers retaliate against them for speaking up, or refuse to bargain in good faith with their chosen representatives. It has operated independently for decades, providing a fair and impartial path to facilitate smooth labor relations and hold lawbreaking employers accountable, regardless of how powerful or politically connected they might be.
But this year is different. It is no exaggeration to say that basic labor protections—internationally recognized as fundamental human rights—are in jeopardy in the United States. And it is fair to ask whether workers still have the basic rights that Congress enshrined into law so many years ago. With an anti-worker White House, chaos in the courts, and an uncertain future at the NLRB, Labor Day in 2025 seems less like a moment of celebration and more like a day of reckoning for workers’ rights.
Fortunately, the history that we honor on this important holiday teaches us that America’s workers are resilient and resourceful, and can command tremendous power when they stand together and support each other. While the tumultuous changes in federal labor law play out, workers still have a voice, and many ways to use that voice, in protest and in solidarity. Today of all days, our country should be listening.
Tags: nlrb, donald trump, Labor Day