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 here, here, 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.
- Initiate and prosecute—
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.