Stalled Cases and Strained Staff: Trump’s NLRB Gives Workers Little Recourse

Empty seats on the National Labor Relations Board are stalling the most contentious cases around unfair labor practices, leaving many workers without means to hold their employers accountable.

President Donald Trump fired board member Gwynne Wilcox in January — before her term was set to expire in 2028 — leaving the board without a three-member quorum necessary to resolve cases. Now, those stalled cases are adding to the NLRB’s backlog, former employees of the agency said.

Appealing an unfavorable order from the agency’s lower courts has become a way to delay cases indefinitely.

“Anyone who wants to get a case stuck right now can get that case stuck,” said Lauren McFerran, a former board member and the NLRB chair during the Biden administration.

Trump has nominated labor attorneys Crystal Carey and James Murphy to serve as general counsel and board member, respectively. Both have cleared the committee level and await confirmation by the Senate. Another board member nominee, Boeing Chief Labor Counsel Scott Mayer, will go through a markup by the Senate Health, Education, Labor, and Pensions committee on Wednesday, according to a committee spokesperson.

Meanwhile, the NLRB’s acting general counsel, William Cowen, who was appointed by Trump in February, is closing cases, with little recourse for those involved. Cases that workers or employers appeal face a dead end without a board quorum to hear them.

By August, the agency had closed around 1,600 more cases than it had by the same time last year, according to a Brookings Institution analysis of NLRB administrative data. The NLRB had 17 cases open on Tuesday, compared with 48 on the same day last year, according to a NOTUS review of case data.

Cowen has said he’s seeking to cut down the long-standing backlog, emphasizing a “focus on pursuing foreseeable harms that are clearly caused by the unfair labor practice,” per a memo the agency put out in May.

Per the memo, Cowen emphasized to the board that it “should be mindful of not allowing our remedial enthusiasm to distract us from achieving a prompt and fair resolution of disputed matters.”

The move was seen as an opening to roll back Biden-era guidance to push for “the full panoply of remedies available to ensure that victims of unlawful conduct are made whole” — a policy that labor lawyers have said angered management-side counsel.

Critics of Cowen’s approach said he’s weakening important worker protections, but acknowledged that it is typical for a new general counsel to rescind their predecessor’s guidance.

Cases are moving through the lower levels of the agency, though with significantly fewer workers than normal, according to former employees.

Labor lawyer and founder of the left-leaning think tank People’s Policy Project, Matt Bruenig, said a filing he made in August 2024 has yet to clear the first step of the adjudication process, where the agency determines if the case has merit.

The NLRB declined to comment.

The NLRB’s inability to resolve some unfair labor practice cases has raised concerns among worker advocates, who fear that it will embolden businesses. Employers have already appealed at least 50 union election results since Trump fired Wilcox, Reuters reported.

“The bottom line here is for the better part of this year the NLRB has been unable to execute its highest and most fruitful functions,” said Patrick Oakford, the director of worker power and economic security at the Roosevelt Institute. “The board is unable to fully enforce the rights of workers.”

In August, the U.S. Court of Appeals for the 5th Circuit upheld an injunction halting NLRB proceedings against SpaceX and two other companies. The majority wrote that the structure of the agency, as laid out by federal law, is unconstitutional, with too many layers of protection shielding board members and administrative law judges from removal. That means employers in the 5th Circuit’s states of jurisdiction can effectively “run to court” for injunctions against NLRB prosecutions, McFerran said.

“People in Texas, Louisiana and Mississippi functionally don’t have NLRA rights right now,” said McFerran, a senior fellow at The Century Foundation.

The ruling was another blow to the NLRB after the Trump administration had earlier in the year targeted the independence of administrative agencies themselves. The president issued an executive order in February declaring his “supervision and control” of independent agencies.

“Because the agency has not been fully operative this year, I don’t think we’ve seen the full effect of these assertions of executive authority over the NLRB yet,” McFerran said.

Some states are breaking ground to provide a means of recourse for workers while the NLRB lacks a quorum. New York Gov. Kathy Hochul and California Gov. Gavin Newsom signed so-called “trigger” laws in September, expanding the jurisdiction of the states’ respective Public Employment Relations Boards to handle private sector cases while the NLRB is unable to do so. The NLRB has sued both states.

But even if the NLRB found a quorum again, the agency won’t have the same resources as it previously did. Some rank-and-file employees are departing the already understaffed agency, according to former employees.

Staffing levels are “low and getting lower,” though understaffing has long been a problem, in part due to funding issues, a former case-handling employee said. McFerran estimated that staff numbers had dropped by around 30% over the last decade before Trump returned to office, while the agency’s caseload stayed roughly the same. It’s left newer attorneys to handle the cases.

“The challenge with the case backlog is that the agency has been underresourced,” McFerran said. “It is made worse right now by the fact that the board” has not had a quorum since January.

Some employees left the agency this year following DOGE’s “Fork in the Road” directives or opted to retire early, according to former employees, who expressed concern that ongoing pressure from the Trump administration could result in another round of staff departures. The NLRB reported 38 fewer workers in its October shutdown plan than it employed in September 2024, a NOTUS review of federal data found.

“When they open up for business, it’s going to be crazy town over there,” the former employee said.