How Trump Is Wrecking the Agency That Protects Worker’s Labor Rights

A great riddle of the 2024 election is how Donald Trump managed to double (to 14 points) his advantage among working class voters, defined as those lacking a college degree, compared to 2016. This is a mystery because Trump spent much of his first term undermining labor rights. The main (though by no means only) vehicle for doing so was the Trump-appointed majority on the National Labor Relations Board, which adjudicates labor-management disputes.Among other anti-worker rulings, the Trump NLRB effectively scuttled a legal challenge that the Obama NLRB’s general counsel had initiated holding McDonald’s liable for labor-law violations committed by its franchisees; permitted management to require as a condition of employment that workers give up their right to sue the company; empowered management to slow down union elections, a common tactic to undermine organizing drives; and denied workers the right to use work email to communicate about workplace issues. Despite all this, Trump in 2024 expanded his share of the very working-class voters he worked so hard to undermine, from 51 percent in 2016 to 56 percent. Trump even bumped up his share of union-household votes, from 42 percent in 2016 to 45 percent, reducing the Democratic advantage from 9 percentage points to eight. It was hard not to conclude that America’s working class, which had been dying in shocking numbers from what the economists Ann Case and Angus Deaton called “deaths of despair,” was committing economic suicide as well.Fentanyl-related deaths began to decline around 2022 and continue to do so, raising some hope that the working class will cease committing self-harm at the ballot box. Early signs are trickling in that this is starting to happen. Trump’s even beginning to falter with white working class voters, who until now had been his most stalwart supporters. So perhaps the proles will now pay more attention to the havoc Trump II is wreaking at the NLRB.The main Trump plan this time out has been to put the NLRB on ice by denying it a quorum. That was achieved by firing NLRB Board Chair Gwynn Wilcox, a Democratic appointee, a few days after Trump’s inauguration. No reason was stated for the firing, making it plainly illegal under the 1935 National Labor Relations Act (“Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause”). Wilcox sued. A district court judge reinstated her, but then the D.C. Court of Appeals issued an emergency stay of that decision, the “emergency” in this case apparently being that the NLRB might resume operations with a lawfully appointed board member. On further “en banc” consideration, however, the appeals court concluded the firing really did violate the law, and so reinstated Wilcox. That prompted the Supreme Court to execute the final chess move, blocking Wilcox’s reinstatement on the grounds that the high court intended to overturn the 1935 precedent upholding Wilcox’s job protection (Humphrey’s Executor) but just hadn’t got around to it yet. (They’re very busy people!) The vehicle for Humphrey’s Executor’s execution won’t be Wilcox’s case (to which the Supreme Court denied cert) but rather a separate case about Trump’s firing Democratic Federal Trade Commissioner Rebecca Kelly Slaughter. The high court heard Trump v. Slaughter arguments in December. Considering that it previously broadcast to the world that Trump would win, why haven’t we seen a decision? Because the reactionary majority has to concoct some plausible-sounding reason to dismantle Humphrey’s Executor for the NLRB, the Federal Trade Commission, and all the other independent agencies it doesn’t take seriously enough to care whether Trump fouls them up—but to keep Humphrey’s Executor for the one independent agency the Republican majority does take seriously, which is the Federal Reserve. If Trump fouls the Fed up, that will screw up their retirement accounts! But you can’t say that in a legal opinion, so they’re struggling to come up with something that sounds better. In denying the NLRB a quorum, Trump denied Wilcox the opportunity to preside over a Democratic NLRB majority until Trump got around to filling its two vacancies—three after Wilcox’s ouster. (Presidents must reserve two of the five NLRB board positions for the opposing party, and by law all five board members serve fixed terms.) Putting the NLRB on ice also denied parties the chance to appeal to the full board in Washington any adverse decision handed down by a regional NLRB administrative law judge. That had the effect of leaving many ALJ decisions in limbo, management’s second-favorite destination for unfair labor practice challenges.