On January 27, 2025, President Trump fired National Labor Relations Board (“NLRB” or “Board”) Member Gwynne A. Wilcox, marking the first time that a president has ever attempted to remove a Board member prior to the end of their five-year term. The move – if it withstands court scrutiny – leaves the Board with only two (2) remaining members: Chair Marvin E. Kaplan and Member David M. Prouty and without a quorum to rule on matters, as covered here. See New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010). Chair Kaplan’s term lasts through August 27, 2025, and Member Prouty’s term lasts through August 27, 2026.

This came soon after President Trump fired NLRB General Counsel Jennifer A. Abruzzo. As reported here, the firing of GC Abruzzo was expected and has been held to be lawful in various Circuit Courts. However, the firing of Board Member Wilcox sets up a constitutional fight regarding President Trump’s removal power.

Section 3(a) of the NLRA states that “[a]ny 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,” which has led prior presidents to refrain from firing sitting Board members. It is expected that the administration will argue that this removal requirement is unconstitutional under Article II, which requires that the president “shall take Care that the Laws be faithfully executed,” meaning the president cannot be prohibited from hiring and firing certain administrative officials, such as Board members, at will. Employers have made similar arguments as to the alleged unconstitutional nature of the NLRA’s removal requirements, as previously reported herehere, and here.

President Trump will likely appoint an Acting General Counsel in the near future and nominate a new General Counsel soon after, subject to Senate approval. It is less certain what President Trump will do concerning the three (3) vacant seats on the Board, who also would need to be nominated subject to Senate approval. Historically, the administration’s party has had three (3) of the five (5) seats. If President Trump does choose to appoint new members, there is an obvious question of whether he will continue this precedent or rather appoint only Republican members to the seats.   

While in the short term, some parties with matters pending before the Board may have some relief, the longer term implications of a complete standstill at the Board and the resulting uncertainty can actually be very difficult for organizations looking to move forward and make decisions on both day-to-day employment matters and large scale initiatives.

UPDATE: in the wake of Trump’s Board shake-up, on February 1, 2025, the NLRB Office of Public Affairs issued a notice regarding continued Board operations, despite the lack of quorum.  The notice included three (3) major announcements:

  • NLRB Field Offices will continue normal operations in the processing of unfair labor practice cases and representation cases;
  • All representation cases may still be processed, and certifications may be issued notwithstanding the pendency of a request for review, which would be considered by the Board once it regains a quorum;
  • The General Counsel (or Acting General Counsel) has the authority, and responsibility, on behalf of the Board to—
    • Initiate and prosecute—
      • Injunction proceedings under Section 10(j), 10(e), and 10(f) of the NLRA;
      • Contempt proceedings pertaining to enforcement of, or compliance with, Board orders; or
      • Any other court litigation otherwise requiring Board authorization.
    • Institute and conduct appeals to the Supreme Court.

As reported here, after the firing of Acting General Counsel Jessica Rutter, there is no Acting (or actual) General Counsel to take the actions outlined in the third announcement.  Nevertheless, the Office of Public Affairs has made clear that the Board will continue to run to the extent possible despite Trump’s firings in key positions.  As always, we will continue to monitor the NLRB’s actions and composition in the new administration.

UPDATE: On February 5, 2025, former Board Member Wilcox filed a lawsuit alleging that her removal from the Board by President Trump on January 27, 2025, violated Section 3(a) of the NLRA. As described above, Section 3(a) limits the president’s authority to remove Board members to situations of “neglect of duty or malfeasance in office,” and only after notice and hearing. The complaint seeks injunctive relief to return Wilcox to her position on the Board, the term of which runs through 2028.

Wilcox relies on 90-year-old Supreme Court precedent affirming the Congressional authority to limit the president’s ability to remove officers of independent administrative agencies created by legislation. The 1935 case, Humphrey’s Executor v. United States, involved President Franklin D. Roosevelt’s attempt to remove William E. Humphrey, a member of the Federal Trade Commission appointed by the prior administration. In holding that President Roosevelt could not lawfully remove Humphrey, the Court distinguished the President’s unfettered authority to remove executive officers from the authority to remove officers of administrative agencies where Congress imposed a fixed term and specifically defined the causes for valid removal in the applicable statute.

President Trump previously asserted the authority to remove NLRB members at will is consistent with the Supreme Court’s 2020 decision, Seila Law LLC v. Consumer Financial Protection Bureau. According to President Trump, the Court narrowed Humphrey’s Executor and held the Congressional authority to create for-cause removal protections for officers of administrative agencies exists only where the officers are part of a multimember body of experts, balanced on partisan lines, appointed to staggered terms, and perform quasi-legislative or -judicial functions rather than exercising any executive power. President Trump, thus, asserted that the president has the authority to remove Board members at will because the Board is not balanced on partisan lines and exercises executive power. Such an interpretation would effectively require the Court to overturn Humphrey’s Executor.

Given the precedent at issue, Wilcox’s lawsuit will likely move quickly through the courts and could eventually be heard by the Supreme Court. The Board will continue to lack a quorum until this case is resolved or President Trump appoints an additional member. Until that time, employers can expect the Board’s processes to move slowly and resolution of matters pending to be delayed. If President Trump prevails, presidential authority to remove Board members at will should have long-term implications for the future composition of the Board as administrations change.  The Board’s short-term future could also remain in flux indefinitely as it operates without a quorum. This resultant uncertainty will further exacerbate the difficulties faced by employers with respect to both day-to-day matters and long-term decision making.

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Photo of Michael Lebowich Michael Lebowich

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional…

Michael J. Lebowich is a partner in the Labor & Employment Law Department and co-head of the Labor-Management Relations Group. He represents and counsels employers on a wide range of labor and employment matters, with a particular interest in the field of traditional labor law.

Michael acts as the primary spokesperson in collective bargaining negotiations, regularly handles grievance arbitrations, assists clients in the labor implications of corporate transactions, and counsels clients on union organizing issues, strike preparation and day-to-day contract administration issues. He also has significant experience in representation and unfair labor practice matters before the National Labor Relations Board.

His broad employment law experience includes handling of race, national origin, gender and other discrimination matters in state and federal court. A significant amount of his practice is devoted to counseling clients regarding the application and practical impact of the full range of employment laws that affect our clients, including all local, state and federal employment discrimination statutes, the Fair Labor Standards Act, the Family and Medical Leave Act, and state labor laws.

Michael has substantial experience in a wide variety of industries, including entertainment, broadcasting, newspaper publishing and delivery, utilities and lodging. He represents such clients as The New York Times, BuzzFeed, ABC, the New York City Ballet, PPL, Pacific Gas & Electric, Host Hotels and Resorts, and The Broadway League (and many of its theater owner and producing members).  Michael also has significant public sector experience representing, among others, the City of New York and the Metropolitan Transportation Authority.

Michael is a frequent guest lecturer at Columbia Business School, the Cornell School of Hotel Administration, the New York University Tisch School for Hospitality, Tourism and Sports Management, and is an advisory board member of the Cornell Institute for Hospitality Labor and Employment Relations.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Michael Kratochvil Michael Kratochvil

Michael Kratochvil is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations & Sports Groups. Michael represents unionized and non-unionized employers in all stages of labor-management relations and in proceedings before the National Labor Relations Board.…

Michael Kratochvil is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations & Sports Groups. Michael represents unionized and non-unionized employers in all stages of labor-management relations and in proceedings before the National Labor Relations Board.

Michael’s labor-management relations experience spans a variety of industries including healthcare, entertainment, production and manufacturing, higher education, and various service industries. His work involves bargaining units of all sizes represented by labor organizations such as SEIU, Teamsters, UAW, IUOE, UFCW, CWA and many others.

While in law school, Michael interned for Magistrate Judge Katharine H. Parker in the Southern District of New York and was a student volunteer field examiner at Region 2 of the National Labor Relations Board.