For months, the National Labor Relations Board (NLRB) has lacked the quorum it needs to function — a state of affairs created in part when President Trump fired board member Gwynne A. Wilcox, a Democrat, in late January.
That could soon change. In July, Trump nominated Scott Mayer, a lawyer for Boeing, and James Murphy, a staffer for previous Republican board members, to fill two Republican seats on the NLRB.
Their confirmation is not yet a sure thing. Mayer in particular faced tough questions during a Senate Health, Education, Labor, and Pensions Committee confirmation hearing Wednesday, including from Sen. Josh Hawley (R-MO), whose vote he would need to win. A committee vote has not yet been scheduled, according to a committee spokesperson.
But even if the nominees are confirmed and the board does return to action, individual nominees’ records and political leanings will, experts said, matter less than they did in the past, amid Trump’s reinterpretation of his authority over the board — an interpretation the Supreme Court looks likely to go along with. His firing of Wilcox and NLRB General Counsel Jennifer Abruzzo had clear implications for anyone who wants to keep their job on the board.
Sen. Bernie Sanders (I-VT) got at this idea, asking each nominee if they’d be able to act independently of influence from the president.
Sen. Maggie Hassan (D-NH) was more pointed.
“If directed by the president to take an action that would break the law,” she asked each nominee, “would you follow the law or follow the president’s directive?”
Both nominees said they’d follow the law, but also rejected the idea that Trump would ask them to break it, despite Trump’s repeated assaults on independent agency autonomy over the last several months.
‘Two anti-worker men’
Hawley sparred with Mayer — currently the chief labor counsel at Boeing — over a strike involving 3,200 of the plane manufacturer’s machinists in MissouriBoeing’s planes “were literally falling out of the sky in pieces and you weren’t paying your workers,” though former Boeing CEO David Calhoun received $32.8 million in annual compensation, Hawley said.
“Are we going to get to a fair resolution where these workers get paid,” Hawley asked later, “or are these folks gonna be permanently replaced by non-union workers?”
Mayer said that he’s not involved in those negotiations.
Nominees would need a simple majority — in this case, every GOP senator — to advance out of committee. Hawley, who has branded himself as a pro-labor Republican, in July threatened the confirmation of Trump’s NLRB general counsel nominee Crystal Carey when he questioned her over her opposition to a 2024 board decision finding that employers who force workers to attend anti-unionization meetings are violating federal labor law. Carey has still not received a committee vote.
TPM reached out to Hawley’s office for comment on how he might vote on these nominees.
Sanders, the ranking member in the committee, followed a similar line of questioning.
“Do you think it’s fair that workers lose their health benefits during this strike while the CEO gets $18 million for four months’ of work?” he asked.
He was referring to news reports about new Boeing CEO Kelly Ortberg’s compensation after she assumed the role toward the end of last year. At the same time, Sanders noted, striking workers would lose their health care benefits. In response, Mayer again asserted he hadn’t been involved in the Missouri negotiations, and touted an agreement that union members ultimately rejected.
If confirmed by the whole Senate, Mayer and Murphy will join the NLRB’s only member, Democratic appointee David A. Prouty, returning the usually five-person board to a three-person quorum with two GOP members and one Democratic one. Historically, the political affiliation of the board members breaks along a 3-2 split, with the majority coming from the president’s political party. With a quorum, the board should be able to return to its work of helping settle labor disputes as outlined under the National Labor Relations Act.
Much of Wednesday’s committee hearing focused on Mayer’s work for Boeing during the 2024 Boeing machinists’ strike, which lasted more than 50 days and ultimately resulted in the workers getting a 38% pay increase over four years.
Murphy, on the other hand, is retired and has an extensive background with the NLRB, having served for decades as a staff member and as a career NLRB lawyer. He most recently represented employers at Big Law firm Ogletree Deakins. During the hearing, he emphasized his desire to work through the board’s case backlog.
Labor organizations decried Trump’s appointment of both Mayer and Murphy, predicting a shift toward pro-employer rulings. Claude Cummings Jr., president of the Communications Workers of America (CWA), put out a statement calling Murphy and Mayer “two anti-worker men, who have elevated corporate interests above workers’ rights for decades.” The New Jersey AFL-CIO said in a July article Mayer’s nomination specifically “raises alarms for the labor movement.”
An agency under Trump’s thumb?
But the question of whether individual board members’ background and beliefs matter in the wake of Wilcox’s firing lingered over the hearing.
Wilcox was nominated by former President Joe Biden and became the first Black woman to serve on the board when she was appointed in August 2021. Before that, she’d worked as an attorney for the New York City-based regional NLRB office and represented unions for a New York-based law firm. Trump removed Wilcox and Abruzzo, also a Democrat, within days of his taking office. In the removal letter, Trump said the NLRB wasn’t “fulfilling its responsibility to the American people,” and that Wilcox and Abruzzo hadn’t “been operating in a manner consistent with the objectives of my administration.”
Incorrectly identifying Wilcox as an NLRB commissioner (the NLRB has no commissioners) Trump wrote he believed Wilcox “unduly” disfavored employers. The implications, said Margaret Poydock of the Economic Policy Institute, is that the newly-appointed board members are expected to rule in favor of employers. That could negatively influence unions’ decisions to bring issues before the board, Poydock told TPM.
“[Trump] kind of gave this justification that if a board member is not favoring employers, they might risk losing their job,” Poydock said of Trump’s letter firing Wilcox. “So workers or union organizers or labor unions may not want to go to a board whose kind of mandate is to favor an employer over the worker.”
Poydock co-authored an article which found the NLRB has continued to process cases through its 12 regional offices, where most cases are handled.
As of August, the NLRB closed 10% more cases than at the same time in the previous two years. That’s thanks in part to a perfect storm of positive developments for the board, including NLRB budget increases under Biden and general counsels under Biden and Trump, said Poydock, who have prioritized decreasing the board’s case backlog.
Still, without a quorum, the national board can’t address workers’ rights violations via requests for review or enforce its own rulings.
“If a private sector worker’s rights are violated under the [National Labor Relations Act], the NLRB is the only way for them to seek justice,” Poydock said. “And so justice is not being served because these cases aren’t being heard. So, there’s really nothing to prevent employers from violating workers’ rights because the mechanism that dissuades them or reprimands them is currently not working.”
Wilcox sued the administration for wrongful termination soon after her removal. While a lower court judge granted Wilcox’s motion to remain on the NLRB until her case was resolved, the D.C. Circuit Court and ultimately the Supreme Court ruled against reinstating Wilcox while her challenge to Trump makes its way through the legal system.
