Following Foundation Legal Arguments, Trump Fires Biden-Appointed NLRB Bureaucrats
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, March/April 2025 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Foundation constitutional lawsuit first to argue presidents can remove Board members
President Trump appears intent on ending union bosses’ reign at the NLRB. One of his first actions was to axe Jennifer Abruzzo and Gwynne Wilcox, both ex-union bosses who constantly sought to beef up their cronies’ powers over employees.
WASHINGTON, DC – Joe Biden, a career lackey of Big Labor union bosses, spared no moment of his administration ensuring that his cronies at the top of America’s largest unions gained power at the expense of independent-minded workers.
Only minutes after being inaugurated in 2021, he began setting the stage for a Big Labor takeover of the federal government: He immediately fired Peter Robb, the general counsel for the National Labor Relations Board (NLRB) during Donald Trump’s first term. With Robb gone, Biden’s acting general counsel quickly quashed multiple National Right to Work Foundation-backed cases that would have otherwise received full NLRB consideration. When Biden filled the general counsel position, he picked Jennifer Abruzzo — a radical ex-Communications Workers of America (CWA) lawyer who was confirmed only because then-Vice President Kamala Harris broke a party-line deadlock in the Senate.
And Biden wasn’t finished. He filled two vacancies on the Board itself with Gwynne Wilcox and David Prouty — who had both worked for the radical Service Employees International Union (SEIU).
Biden’s crusade against worker freedom arguably culminated in the disastrous Cemex Construction Materials Pacific NLRB decision, which gave union officials the power to seize monopoly bargaining power in a workplace without winning a secret-ballot election among employees. The Biden Board also repealed key Foundation-backed reforms that (among other things) stopped union bosses from using so-called “blocking charges” alleging employer malfeasance to stop workers from voting in union removal elections they had requested.
Sudden End of Radical Biden Majority Creates Opportunities for Foundation Litigation
But, just a week after re-ascending to the White House, President Trump took immediate action to undo the damage to worker freedom caused by the historically-radical Biden NLRB. In late January, Trump took the crucial step of giving both Abruzzo and Wilcox the boot. That, combined with the fact that the Senate did not confirm Biden NLRB Chairman Lauren McFerran for another term, means Trump has the opportunity to appoint a pro-freedom majority to the Board before it considers any other cases.
“We hope that this signals the opening of a new chapter at the NLRB, where the agency will fulfill its statutory mandate to protect workers’ right to associate with unions if they choose, but will equally defend their right to refrain from all union activity,” commented National Right to Work Foundation President Mark Mix.
Trump Admin, Others Follow Foundation Lead in Arguing for Structural Board Change
By removing Wilcox, the Trump Administration is relying on arguments made in the Foundation’s groundbreaking cases challenging the structure of the NLRB. Foundation-backed Starbucks employees Ariana Cortes and Logan Karam filed the first-ever federal suit arguing that, as per the Constitution’s separation of powers principles, the president should be able to remove them at-will.
Cortes and Karam’s suit is currently pending at the D.C. Circuit Court of Appeals. Big Labor backers argue that board members like Wilcox have statutory protections that make them removable only in certain circumstances. But Board member protections are constitutionally questionable.
“President Trump made an excellent and decisive move to protect the freedom of American workers. Abruzzo’s and Wilcox’s track records were devastating for independent-minded employees,” observed Mix.
“We’re also encouraged by the Trump Administration’s apparent reliance on National Right to Work Foundation-backed workers’ cases to affirm the idea that NLRB members — like Wilcox — should be removable by the president at will. “The Foundation still has considerable legal work to do to reverse the damage done by the Biden NLRB, and removing a union partisan like Wilcox from the Board is just the first step towards restoring the rights and freedoms of workers opposed to union affiliation,” added Mix.
NY Starbucks Baristas File Amicus Brief Opposing Reinstatement of Biden-Appointed NLRB Member Removed by President Trump
Starbucks employees have pending federal lawsuit challenging NLRB structure as unconstitutional, argue they could be harmed if member’s removal is blocked
Washington, DC (March 11, 2025) – The National Right to Work Foundation has just filed an amicus brief at the District of Columbia Circuit Court of Appeals for two upstate New York Starbucks baristas in a federal case that could determine the constitutionality of the structure of the National Labor Relations Board (NLRB).
The case, Wilcox v. Trump, concerns whether President Trump properly exercised his executive authority when he removed the Biden-appointed former chair of the NLRB, Gwynne Wilcox. Trump Administration lawyers argue, as baristas Ariana Cortes and Logan Karam have in their own pending lawsuit at the D.C. Circuit Court of Appeals, that the National Labor Relations Act (NLRA, the federal law authorizing the NLRB) violates the Constitution because it prevents the president from removing board members.
Cortes and Karam now join the Administration’s legal team in asking the D.C. Circuit Court to stay a lower court’s ruling that Wilcox be reinstated. Their brief notes that they, and others, could be directly harmed if Wilcox participates in an NLRB decision without being properly accountable to the President.
Cortes and Karam work at two separate Starbucks locations in the Buffalo, NY area. They both submitted petitions on behalf of their coworkers in 2023 with sufficient support to prompt the NLRB to hold votes to “decertify,” or remove, the Starbucks Workers United (SBWU) union from each of their stores. However, NLRB officials indefinitely delayed those union decertification elections on the basis of unproven charges leveled at the Starbucks Corporation by SBWU union officials. This led Cortes and Karam to file their own federal lawsuit – the first in the nation challenging the agency’s structure as unconstitutional as a whole.
The same issue regarding the NLRB’s constitutionality was fast-tracked in federal courts following President Trump’s firing of Biden-appointed NLRB Board Member Gwynne Wilcox, which she challenged as a violation of the NLRA’s board member removal protections. Trump Administration lawyers countered with arguments parallel to those in Cortes and Karam’s lawsuit, contending that NLRB members’ removal protections permit them to exercise substantial executive authority while being immune to presidential removal for the duration of their terms, something forbidden by U.S. Supreme Court decisions like Seila Law v. CFPB and Collins v. Yellen.
NLRB’s Hyper-Partisan Nature and Unique Powers Make Removal Protections Inappropriate
Cortes and Karam’s brief focuses on how the Board’s powers to enforce federal labor law, lack of technical expertise, and the partisan nature of its membership place it outside the Supreme Court’s concept of a federal agency where removal protections might be appropriate. It also argues that reinstating Wilcox would cause chaos because it would let her participate in deciding cases before the NLRB while her continued presence on the Board is still the subject of litigation.
“Cortes and Karam have a vital interest in the outcome of this case, and not only because it concerns the constitutionality of [NLRB member removal protections],” the amicus brief says. “Cortes and Karam do not want an individual the President properly removed from the Board because of her unsound rulings—Gwynne Wilcox—to decide their pending NLRB cases.”
“Ms. Cortes and Mr. Karam’s amicus brief points out what many workers who have litigated cases before the NLRB have learned the hard way – that the NLRB is a hyper-partisan agency often beholden to the interests of union bosses, yet masquerades as an impartial arbiter of workers’ rights,” commented National Right to Work Legal Defense Foundation President Mark Mix. “While the issue of the NLRB’s constitutionality is likely to ultimately end up before the Supreme Court, Ms. Cortes and Mr. Karam speak for many independent-minded workers around the country by urging the D.C. Circuit Court to bar Gwynne Wilcox from participating in Board decisions until this is fully sorted out.”
Foundation Demands Recusal of Former SEIU Lawyers Appointed to Labor Board
The following article is from the National Right to Work Legal Defense Foundation’s bi-monthly Foundation Action Newsletter, November/December 2021 edition. To view other editions of Foundation Action or to sign up for a free subscription, click here.
Biden NLRB appointees have blatant conflicts of interest in case brought by SEIU officials
Foundation attorneys demand that the NLRB IG stop David Prouty (left) and Gwynne Wilcox, fresh off tenures as high-ranking SEIU lawyers, from derailing efforts to ensure workers can resist union influence they oppose.
WASHINGTON, DC – The National Right to Work Legal Defense Foundation submitted a letter to the National Labor Relations Board (NLRB) Inspector General (IG) and chief ethics officer, urging them to remove NLRB members David Prouty and Gwynne Wilcox from involvement in an ongoing federal case and any cases brought by Foundation-assisted workers against Service Employees International Union (SEIU) affiliates.
Prouty and Wilcox were both appointed to the Board by President Biden. Prior to their appointment, both were lawyers for influential SEIU affiliates. The NLRB members, including Prouty and Wilcox, are currently being sued by the SEIU in federal court over a rule finalized by the Trump NLRB. That rule clarified that a company that does not exercise direct control over employee wages and working conditions cannot be charged with unfair labor practices committed by its related entities, such as franchisees.
Union officials want to change that so-called “joint employer” standard to launch top-down organizing campaigns to target workers for monopoly unionization. During such campaigns, union officials often attack companies in the press and through coordinated litigation in order to get employer assistance in imposing unionization on workers, including by bypassing the secret ballot vote process for unionization.
Workers Regularly Charge SEIU Union Affiliates with Rights Violations
The letter from Foundation President Mark Mix points out Prouty and Wilcox’s recusal is of particular interest to the Foundation because “Foundation Staff Attorneys frequently provide free legal representation to employees involved in litigation before the National Labor Relations Board against SEIU or its affiliates,” and that the same considerations “should mandate the recusal of Member Wilcox and Member Prouty in those cases as well.”
Each year, Foundation staff attorneys handle more than 100 cases brought for workers at the NLRB challenging union violations of workers’ rights. SEIU affiliates are among the most often cited in those cases for violating federal law. Just since 2018, Foundation attorneys have assisted workers in 67 cases against SEIU affiliates, over half of which have been at the NLRB.
The letter also asks that the NLRB IG “apply the same level of vigor in examining their conflicts as he did in matters involving former Board Member William J. Emanuel.” Although the NLRB finalized its “joint employer” standard through the rulemaking process, an earlier 2017 case decision that would have adopted the same standard was gutted because the NLRB IG ruled that then-Member Emanuel should have recused himself.
The Foundation’s letter details Member Prouty’s history as General Counsel of SEIU Local 32BJ, a powerful SEIU affiliate. It further points out that Member Prouty “played a key role in opposing the Board’s final rule on joint employment,” personally signing comments against the rule, which is further evidence of his specific conflict of interest in the pending case.
Letter: Ex-SEIU Board Member Even Headed Up Group at ‘Core’ of Litigation
Member Wilcox’s conflicts go even deeper, according to the Foundation’s letter. It notes that Member Wilcox was at the forefront of a union campaign that openly opposed the NLRB’s “joint employer rule,” a campaign that is “specifically named as interested in, and a core part of, the Litigation” against that rule.
The Biden Administration has gone above and beyond in its efforts to entrench union boss influence at the NLRB. Just minutes after being inaugurated, President Biden took the unprecedented step of firing then-NLRB General Counsel Peter Robb, who still had 11 months left on his Senate-confirmed term. Robb had aggressively supported cases in which workers sought to free themselves from coercive union boss-created schemes.
Foundation Also Calls Out NLRB General Counsel
Robb’s replacement, Biden appointed Jennifer Abruzzo, is a former Communications Workers of America (CWA) union lawyer who, Freedom of Information Act (FOIA) records requests from the Foundation revealed, was half of a two-person Biden NLRB transition team that engineered Robb’s first-of-its-kind ouster.
In a separate letter, Foundation staff attorneys have demanded Abruzzo’s recusal from an ongoing NLRB case brought by an ABC cameraman against a CWA affiliate.
The letter points out that, while at the CWA International as special counsel, Abruzzo was responsible for the very legal policies that CWA affiliates are bound to follow, including the one challenged by the worker’s Foundation-provided attorneys in the case.
“The Biden Administration has already displayed some of the most biased and politically motivated behavior at the NLRB since the agency’s inception, all in an attempt to unfairly rig the system to favor Biden’s union boss political allies over protecting workers’ individual rights,” commented National Right to Work Foundation President Mark Mix. “If Prouty and Wilcox’s obvious conflicts of interest are unaddressed in this case, the message from the Board will be clear that ethics policies and recusal rules no longer apply now that pro-union boss Biden appointees are in power.”
