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Joe Biden was the first president to join a union picket line and support labor’s side in a number of major disputes. His appointments to the National Labor Relations Board, the principal administrative agency handling labor-management conflict, interpreted the 90-year old National Labor Relations Act so as to enhance the rights of workers to organize. The Biden board promoted workplace democracy more effectively than any of its predecessors.
As the saying goes, no good deed goes unpunished.
President Trump’s second term presages the most anti-labor labor board appointees ever (his first-term NLRB had that same distinction). And equally or more troublesome, Trump, through his arbitrary dismissal of Biden-appointed board member Gwynne Wilcox has joined a position advanced by management labor lawyers at Starbucks, Trader Joe’s and Elon Musk’s Space X, among others. Together they wish to take a wrecking ball to labor law, asserting that the 90-year-old National Labor Relations Act and the independent agency it established are unconstitutional.
In an unfair labor practice complaint against Apple, the National Labor Relations Board accused it of trying to prevent employees from discussing pay equity.
On March 6, in a sweeping opinion both eloquent and scholarly, U.S. District Judge Beryl Howell pushed back against the president’s unlawful firing of Wilcox. Now, as was surely the plan all along, the question of control of the NLRB can and will go to the Supreme Court. If the conservative, Trump-appointed majority agrees with the president — instead of upholding nearly a century of precedent — independent due process for labor and management will be wiped away.
Of course, politics and labor law have always had an uneasy coexistence. By virtue of the National Labor Relations Act’s system of five-year staggered appointments to the NLRB, presidents are able to influence the board’s direction during their four-year terms, but they cannot dominate it or dictate the outcome of a particular case that is before the labor board.
If, however, board members can be dismissed by a president any time he or she disagrees with their votes on the reinstatement of a dismissed worker, say, or a conclusion that labor or management has not bargained in good faith, the rule of law can easily be denied, along with well-accepted principles of independent conflict resolution.
Such a prospect is an ominous cloud over a labor movement that even during the friendly Biden era lost ground. Today unions represent only 11.1% of employees in the workforce. Does all of this mean that organized labor law is a doomed dinosaur, irrevocably headed toward irrelevance? Not necessarily.
A year after ‘hot labor summer,’ California Legislature chills on union demands amid budget concerns
A year ago, thousands of workers went on strike across California, and what became known as “hot labor summer” was reflected in mandatory wage increases and other state policy wins remarkable even for a Democratic-controlled Legislature sympathetic to union concerns.
First, as important as legal protections have been to organizing, law has proved to be a subordinate factor in union growth or decline. In the 1930s, union militancy was in place at least four years before the National Labor Relations Act became effective. The 1947 Taft-Hartley amendments to the act placed restrictions on unions and workers, yet unions continued to grow for nearly a decade after its enactment. Labor won considerably more of its workplace elections in the George W. Bush era than under a more pro-labor board during the Obama administration.
As important, according to U.S. Labor Department data, unions hold $42 billion in financial assets. They can use these monies to finance costly and protracted campaigns in many different businesses, hiring dedicated workers who will give their wholehearted attention to the difficult, time-consuming work of organizing. And these positions could be made more attractive by the promise of advancement to union leadership positions, now too often the province of those who process membership grievances rather than working to widen unions’ reach.
The stage has been set for just such organizing, with recent effective uses of the strike weapon. In 2023, the United Auto Workers new rolling strike strategy against the Big 3 auto companies produced substantial wage and benefit increases. In January, the International Longshoremen’s Assn. obtained more than a 60% pay increase over six years, plus an apparent ban on automation, on the basis of a short stoppage last fall at ports on the East and Gulf coasts.
Unite Here Local 11 accused event management company 1Fifty1 Inc., subcontracted by the Long Beach Convention Center, of paying workers under the table with envelopes of cash. The company’s contract was canceled.
Further, if Trump is even partially successful in his attempt to rid the country of immigrants, a result will be a shortage of workers, which will slant the labor market toward the sellers. The impact in construction, for instance, a sector that is already short hundreds of thousands of hires, will only improve the prospects for unions.
And lastly, if the Supreme Court uses Wilcox’s case to deem the National Labor Relations Act and an independent NLRB unconstitutional, or contrives to consign them to irrelevance, states such as New York, California, Michigan, Illinois and others can work to occupy the vacuum with more robust labor legislation.
The fight is not over.
William B. Gould IV , a professor of law emeritus at Stanford Law and chairman of the National Labor Relations Board, is the author of “Those Who Travail and Are Heavy Laden: Memoir of a Labor Lawyer.”
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Ideas expressed in the piece
- The Biden-era NLRB significantly expanded protections for workers’ organizing rights, promoting workplace democracy and enhancing remedies for unfair labor practices[7].
- President Trump’s abrupt termination of NLRB member Gwynne Wilcox and General Counsel Jennifer Abruzzo—and subsequent legal challenges—threaten the NLRB’s independence, risking a constitutional crisis that could destabilize labor law enforcement[4][6][7].
- Labor advocates argue that unions can still leverage financial resources ($42 billion in assets) and strategic strikes (e.g., autoworkers’ and longshoremen’s victories) to counter hostile federal policies, even if federal protections weaken[7].
- State-level labor laws in pro-union states like California and New York may fill gaps left by federal rollbacks, preserving labor rights if the NLRB’s authority is eroded[7].
Different views on the topic
- Employers anticipate NLRB shifts under Trump to rescind Biden-era policies, such as limits on noncompete agreements and expanded remedies for labor violations, favoring employer-friendly standards for workplace rules, union elections, and joint-employer liability[1][2][5].
- The proposed Faster Labor Contracts Act—which mandates quicker union negotiations and binding arbitration—faces criticism for undermining voluntary bargaining and imposing government-drafted contracts, despite bipartisan support[3].
- Legal challenges (e.g., Space Exploration Technologies Corp. v. NLRB) seek to overturn NLRB rulings on constitutional grounds, arguing its structure violates separation of powers and the Seventh Amendment right to jury trials[6][7].
- Rescinded GC memos under Acting General Counsel William Cowen signal reduced penalties for employers, including narrower “make whole” damages and revived permissibility of noncompete agreements under federal law[5][6].
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