This week, the Senate will hold a hearing on the nomination of Crystal Carey, a relatively unknown management-side labor lawyer, to serve in the critically important role of general counsel at the National Labor Relations Board.
The NLRB is the primary federal agency that protects workers’ right to form and join a union, speak up about unfair working conditions and bargain collectively for a better future. The general counsel is the agency’s lead prosecutor, who sets the agency’s agenda and determines how the law will be enforced. When workers come to the NLRB because they have been fired for trying to form a union, or retaliated against for discussing their working conditions with coworkers, the general counsel decides whether to take their case, and whether their rights will be vindicated.
Carey comes from the law firm Morgan Lewis — the same firm as three past NLRB members from the first Trump administration, who all participated in a predictable effort to shift labor law in a pro-management and anti-worker direction. But times have changed since the days of the first Trump term, during much of which I served as the lone Democratic member of the board.
Carey’s appointment could be much more damaging than the usual tack toward management priorities during a Republican administration. This Trump administration has declared open season on independent executive branch agencies like the NLRB, with unlawful terminations of agency leaders and sweeping executive orders that seek to fundamentally change how these agencies operate, dramatically undermining their ability to serve the public.
At this pivotal moment in the NLRB’s future, senators on the Committee on Health, Education, Labor and Pensions who are considering Carey’s nomination must ask some fundamental questions about whether she believes in and would pledge to support the mission, independence and very existence of the agency she seeks to lead.
Question: Is Carey prepared to defend the constitutionality of the board and its work, including its structure and enforcement powers?
Carey’s firm has been a leading voice arguing on behalf of high-profile clients such as SpaceX that the NLRB’s structure and functions violate the Constitution. Her firm has argued that the agency’s judges, including the board members, are unconstitutionally protected from removal by the president; that the agency cannot constitutionally have both a prosecutor (the general counsel) and adjudicators (the board) within the same agency; and that the agency cannot pursue certain remedies against lawbreaking employers without a jury trial.
All of these arguments are raised in pursuit of the ultimate conservative goal of eviscerating the NLRB’s ability to enforce labor law by “ending agency adjudication at the National Labor Relations Board,” in the words of a recent event hosted by right-wing legal groups.
It is the general counsel’s job to defend the board and its decisions in court. A nominee could not possibly fulfill this role unless she was prepared to defend the very existence of her client and the work that it is authorized by Congress to perform.
Question: Will Carey commit to evenhanded and independent administration of the law?
Another unprecedented challenge the board faces comes from the Trump administration’s threats to the agency’s independence. President Trump recently issued an executive order purporting to give the White House multiple levers of direct control over the operations and decision-making of independent agencies.
The general counsel is clearly subject to termination at will by the president. But the general counsel has always acted independently when it comes to individual cases and whether and how to prosecute them. The new executive order destroys this independence by giving the White House the ability to limit the general counsel’s use of agency funds on a project-by-project basis and requiring the general counsel to defer to the president and the attorney general’s interpretation on questions of law and positions advanced in litigation.
The effect of presidential overreach into the operations of independent agencies has already been felt at other worker-protection agencies. The Equal Employment Opportunity Commission, for example, dropped its own lawsuits on behalf of transgender workers. While agreeing that these workers are protected under civil rights laws, Commission Chair Andrea Lucas explained to Congress that her agency is not independent and must comply with Trump’s orders.
In a model where the president can control individual agency prosecutions, there is little to stop a corporation from leveraging political connections to avoid its legal obligations. This is hardly an abstract concern, as the NLRB currently has active cases alleging labor law violations by companies with close ties to the president, such as SpaceX and Amazon.
Senators deserve assurance that Carey will enforce the law evenhandedly and speak out if the White House tries to interfere with individual prosecutions or undermine the agency’s mission to protect workers’ rights.
Question: Will Carey fight to ensure that the agency has enough resources to protect the public?
The NLRB is plagued by understaffing and inadequate resources. More and more workers have joined together in recent years to stand up for their rights, increasing the agency’s caseload even while its staff has decreased. The agency struggled for years with flat funding in a time of skyrocketing costs. Former General Counsel Jennifer Abruzzo and I worked hard during our time as agency leaders to try to address these resource challenges. In 2023, the agency received its first funding increase in almost a decade, but it remains woefully under-resourced.
Although appointed leaders are not congressional appropriators, they play a vital role in setting the agency’s budget request, working with congressional staff and ensuring that resources are appropriately targeted to support the agency’s core mission. Any responsible NLRB leader should commit to advocating for additional funding, and devoting any additional resources directly to supporting the field staff’s enforcement activities.
At a time when increasing numbers of workers are joining together to seek union representation and advocate for better wages and working conditions, the role of the NLRB general counsel is more important than ever before. Any elected official who claims to be on the side of American workers should only support a nominee that will commit to standing up for the agency, its independence and the vital mission of the National Labor Relations Act.
Lauren McFerran is a senior fellow at the Century Foundation. She served as chairman of the NLRB from 2021 to 2024, and a member of the NLRB from December 2014 to December 2019 and from July 2020 to January 2021.
