Who’s on First?

Abbott and Costello performed their classic “Who’s on first?” baseball sketch in 1945, and America has laughed ever since at the clever and confusing comedy sketch about baseball players whose names include “Who,” “What,” and “I Don’t Know.”

Those three “names” sum up what most of us know about the American labor relations landscape right now as we complete the third month of 2025.  So I will use them as headings for this month’s blog.

Who?

The NLRB was neutered for awhile as member Gwynne Wilcox (D) (who was Chairman under Biden) was fired by the Trump administration on January 27 because her positions collided with those of the new administration. 

Member Marvin Kaplan (R) was tapped to chair the Board, as he had done in the past under Trump. But with Wilcox fired and no replacements, only David Prouty (D) remained – and it takes three members for a quorum to do business.

But on March 6, a federal judge ruled that the Wilcox firing was illegal and ordered that she be allowed to remain on the job.  That ruling is under appeal by the Trump administration. 

President Trump also fired the Board’s General Counsel, Jennifer Abruzzo, on January 27.  That surprised no one.  While GC’s always lean toward either management or labor, Abruzzo’s “lean” was more of a lunge to the left as she aggressively worked to enhance union and worker positions and protections.

The president appointed Willam Cowen (R) as Acting NLRB General Counsel after Abruzzo’s dismissal.  He has stated his intent to follow the executive branch’s lead. 

And on March 24, President Trump nominated management-side Morgan Lewis labor law attorney Crystal Carey as the new NLRB General Counsel.  Cowen will continue to lead the Board pending Carey’s Senate confirmation.

Although it is a given that the two open Board member positions will be filled by Republicans who favor the current administration’s positions, those are still unfilled.

So the current “Who?” consists of Board Chairman Kaplan (R), member Prouty (D), and member Wilcox (D), whose ultimate fate rests with federal appellate courts; and Cowen running the show as GC pending Carey’s Senate approval.

What?

The Board has a quorum and technically can transact business with a 2-1 Democrat majority. 

But both temporary GC Cowen and GC-appointee Carey will work to implement management-friendly changes to the NLRB’s operations and prosecute cases that fit the Republican agenda.

The General Counsel oversees and guides the 26 NLRB regional offices across the nation, telling them what acts deserve prosecution under the Act and what actions are within the rights of employees, unions and management.

My best bet at the immediate “What?” is, well, nothing of real importance until Carey is confirmed as General Counsel and two additional Republican Board members are confirmed.  Then it will, as quickly as possible, undo the previous four years of labor-friendly interpretations in favor of management-friendly decisions. 

I Don’t Know

And the “I Don’t Know” is virtually everything else. 

When Carey is confirmed by the Senate, she will issue a broad memorandum to the agency that will outline her enforcement priorities and positions during her term.  I would be remiss in guessing what individual pieces of her approach may be.  I don’t know.

But broadly speaking, let’s expect to see “captive audience meetings” okayed; the Cemex standard for bargaining orders reversed; more leniency for employers to write and enforce policy handbooks; reduced scrutiny of severance and non-compete agreements; and election rules modified to provide employers more time to respond to union election petitions. 

The Wilcox firing is part of a larger effort under President Trump to convince the federal judiciary that he has the power to fire members of independent federal agencies “at will,” and with no required due process.  How will that turn out?  I don’t know.

So stay tuned to this blog series and maybe we’ll know more later.

And PS – for something way more entertaining than this, search “Who’s on First” and watch Abbott and Costello in their classic best!  “Who” is the first baseman.  “What” is the second baseman.  And “I don’t know” is the third baseman.