This article is a brief update on federal labor law. There’s a problem, though. It is impossible to write a labor law update in this day and time. Really. I’ll give you an example to illustrate. When I started writing this article, there was, effectively, no National Labor Relations Board (NLRB). That’s a big deal. The National Labor Relations Act (the Act) grants exclusive jurisdiction over representation proceedings, i.e., union elections, and unfair labor practice claims — the key statutory rights granted employees by the Act – to a federal agency, the NLRB.[1] Since 1947, the NLRB has been made up of five members, each nominated by the president and confirmed by the Senate to serve for a defined term of five years each. And since that time, it has been a bipartisan body, with three members from the president’s party and two members from the opposing political party. That tradition has been continued by successive administrations decade after decade in recognition of the foundational principle of American labor law, as designed by the Act – compromise.[2] Indeed, Congress created the statutory labor law framework to force employers and employees to sit down together and hash out their respective problems in contract negotiations and grievance proceedings, believing that process would lessen workplace strife and strengthen American business.

The bipartisan board is an outgrowth of that spirit of compromise. The board acts on a quorum of three members. On the eve of the Biden Presidency, there was one open minority seat on the board. During the last week of legislative session in December 2024, board member Lauren McFerran’s confirmation for a successive term failed by one vote in the Senate, leaving the NLRB with only three members at the start of the Trump presidency: one Republican, Marvin Kaplan, and two Democrats, David Prouty and Gwynne Wilcox. One of Trump’s first acts in office was to fire Wilcox, even though her term does not expire until August 2028, leaving the board with only two members. And, without a quorum, the board was unable to act.[3] In many ways, the practice of labor law came to a screeching halt.

On March 6, however, a federal court ordered Wilcox’s immediate reinstatement.[4] With three sitting members again, the NLRB is back in business. At least for now. But the larger questions raised by Wilcox’s removal remain. What is labor law without a board? What is the Act without a forum for enforcement? These are existential questions for the practice. A "tree-falls-in-the-forest" type of question for labor rights. We may not hear the sound of the board’s fall, but there will certainly be an impact.

Politically motivated firings of NLRB members also put at risk the board’s long history of bipartisanship. And the end of bipartisanship will put at risk the very spirit of compromise on which labor law is based. Politicization undermines reasoned decision-making — a universal truism. While the board may have a long tradition of bipartisanship, the agency itself is a political entity. The NLRB’s adjudicative case load is driven, in large part, by the general counsel, who is a political appointee. General counsel tend to come into office with a very pro-union or pro-management agenda, steering cases to the board that will create a body of case law building on that agenda. In January, President Trump fired then-General Counsel Jennifer Abruzzo. Abruzzo had set an aggressively pro-worker agenda during her term, raising issues before the board — like, for example, the validity of non-compete agreements under the Act — that were outside the bread-and-butter issues litigated before the board. The new acting general counsel, William Cowen, recently appointed by President Trump, will presumably set a pro-employer agenda over the next four years. He began, on Feb. 14, by rescinding many of Abruzzo’s memoranda, which serve as guidance to field offices, on various issues. The inherent political influence of the general counsel makes the bipartisanship of the NLRB itself even more critical to the agency’s success.

The current attacks on the board, however, extend beyond attacks on its individual members. Winding their way through the NLRB and the federal courts are a number of challenges to the board’s ability to award monetary remedies for unfair labor practices in light of the Supreme Court’s Jarkesy decision.[5] But, without monetary remedies, the board cannot fulfill its statutory mandate “to take such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act,” to remedy unfair labor practices committed by employers.[6] With labor rights on the chopping block, the real question is whether we, as a society, continue to value compromise in the workplace.

Karla Campbell practices employment law, in particular ERISA, and traditional labor law at Stranch Jennings & Garvey in Nashville. She is a long-time member of the AFL-CIO’s Union Lawyers’ Alliance and a frequent speaker on labor law topics. Before attending law school, Campbell served in the U.S. Peace Corps in Ecuador.

[1] 29 U.S.C. §§ 159(c), 160(a).
[2] See, e.g., James A. Gross, The Reshaping of the National Labor Relations Board: National Labor Policy in Transition, 1937-1947, at 195-96, 225-39 (1981) (describing 3-2 bipartisan tradition).
[3] In New Process Steel, L.P. v. N.L.R.B., the Supreme Court held that the board could not act with only two members.  560 U.S. 674 (2010).
[4] Wilcox v. Trump et al., No. 25-cv-334, 2025 WL 720887 (D.D.C. Mar. 6, 2025).
[5] Sec. & Exch. Comm’n v. Jarkesy, 144 S. Ct. 2117 (2024).
[6] 29 U.S.C. § 160(c).