DEFINE YOUR TERMS: Any attempt by the Trump administration to remove members of the National Labor Relations Board may run into a host of logistical challenges, according to former agency officials and attorneys who represent federal workers in employment matters. Two weekends ago, Senate Majority Leader Chuck Schumer made clear that reconfirming Democratic NLRB Chair Lauren McFerran (and, to a lesser extent, Republican nominee Joshua Ditelberg) is “one of our highest priorities, and we’re going to do everything we can do to get it done by the end of the year.” Doing so this month depends on who shows up to work in the Senate, though it would ostensibly lock in a 3-vote Democratic majority on the five-member board until mid-2026. That has prompted some management-side lawyers and NLRB critics to urge Trump’s team to explore ways to speed up the timeline to flipping the board, as POLITICO and other outlets have noted. Under federal law, the five people who comprise the NLRB can be ousted “for neglect of duty or malfeasance in office, but for no other cause.” Several companies and conservative legal outfits are challenging the constitutional validity of those removal protections, a situation that may kick into high-gear if Trump presses the issue by firing McFerran or one of her fellow Democratic appointees and replacing them. Alternatively, they could try to trigger the mechanism spelled out in the statute permitting for-cause removal — a similarly untested legal proposition. “They can’t use disagreement with a political agenda as a reason,” said Michael Fallings of the law firm Tully Rinckey. “To use that clause they would have to prove they were not performing their duties as they were required, absent from their work, engaging in unethical behavior or bias in decision-making.” But others are less willing to concede that point. “There’s the conventional wisdom, but there is some argument that not following the president’s direction could be enough,” said Pacific Legal Foundation senior attorney Oliver Dunford, whose organization is seeking to overturn a key precedent the NLRB has relied on known as Humphrey’s Executor. “‘Neglect of duty’ could mean not following the president’s direction.” Regardless, the National Labor Relations Act says that removal proceedings require “notice and hearing,” without exactly detailing what those steps entail. "If the White House went down that road the White House counsel or DOJ would have to provide guidance on what that individual would be entitled to,” said former NLRB General Counsel Jerry Hunter, now senior counsel at Bryan Cave Leighton Paisner. That could put the spotlight on William McGinley — who Trump tapped to be White House counsel, but didn’t rise to that height by simply being a yes-man, per our Josh Gerstein. Nevertheless, such a power play would likely prompt litigation, given the abundant ambiguity. “That will not be an inexpensive proposition,” Hunter said. GOOD MORNING. It’s Monday, December(!) 2. Welcome back to Morning Shift, your go-to tipsheet on labor and employment-related immigration. On-call job of the day: Buffalo-area stadium shoveler for $20 per hour. Send feedback, tips and exclusives to nniedzwiadek@politico.com and lukenye@politico.com. Follow us on X at @NickNiedz and @Lawrence_Ukenye.
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