On September 6, 2023, Democratic member Gwynne Wilcox was appointed to the NLRB by former President Joe Biden. Her five-year term was scheduled to end in 2028. However, on January 28, 2025, President Donald Trump made an unprecedented move by firing Wilcox, the former chair and first Black woman to serve on the Board.  By doing so, the President directly challenged the statutory protections that typically shield Board members from removal without cause.  Specifically, the National Labor Relations Act (NLRA) states that the president may only remove NLRB members “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”  This type of protection was upheld as constitutional in the 1935 Supreme Court ruling in Humphrey’s Executor v. U.S., where the court recognized similar protections for members of the Federal Trade Commission (FTC).  The court based its decision on the “character of the commission” as an independent expert panel tasked with “duties neither political nor executive, but predominantly quasi-judicial and quasi-legislative.”  Congress has structured the FTC, NLRB and other independent federal agencies similarly but this Supreme Court precedent has never been expressly applied to the NLRB because no president has fired a board member prior to President Trump’s dismissal of Wilcox.  On February 5, 2025, Wilcox sued President Trump and the NLRB’s newly named Chairman, Marvin Kaplan, in U.S. District Court in Washington, D.C., alleging her removal from the Board was illegal.  The complaint seeks an injunction against Kaplan, “ordering him to reinstate Ms. Wilcox as a member of the Board.”  The case was assigned to Judge Beryl Howell, who was appointed to the bench by President Obama.

The Board’s current composition is Chair Marvin Kaplan, a Republican, whose term expires August 2025, and Member David Prouty, a Democrat, whose term is scheduled to expire in August 2026.  With Wilcox’s firing, the NLRB is without the 3 member quorum needed to conduct its business, and this prevents a Democrat-majority Board, which continued to exist until Wilcox’s removal, from issuing decisions that run counter to the sea change in Board precedent that President Trump expects the NLRB to make once it is staffed with his appointees.

Wilcox’s complaint alleges that the President’s recent actions were “part of a string of openly illegal firings” made by the new Administration as it seeks to put its stamp on U.S. labor policy as quickly as it can.  Wilcox alleges that the President neither provided her with the “notice and hearing” that the NLRA requires nor identified any “neglect of duty or malfeasance in office” sufficient to justify her dismissal.

In President Trump’s discharge letter to Wilcox, he stated that he has the power to remove NLRB members despite the removal protections contained in the NLRA.  The President looks to the Supreme Court’s ruling in Free Enterprise Fund v. Public Company Accounting Oversight Board, where the Court held that laws enabling inferior officers of the United States to be insulated from the Presidential removal authority with two levels of “for-cause” removal violated the separation of powers.  The court’s decision did not question the continued vitality of Humphrey’s Executor, and instead stressed that its decision in Humphrey’s Executor had held that “Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good cause.”

What Does This Mean?

This case ultimately will provide clarity on whether the statutory protections in the NLRA—and similar laws—shield NLRB members, and those of similar independent agency boards, from removal at the whim of an incoming administration.  A quick resolution is unlikely, as any ruling by the trial court is almost sure to be appealed to the Court of Appeals and ultimately to the Supreme Court.  And, while the litigation continues, there is the potential—unless Wilcox’s firing is enjoined—for future Trump appointees to the Board to set about reversing course on Biden-era decisions.

Ballard Spahr’s Labor & Employment Group will continue to monitor the latest changes to the NLRB and update its clients on the potential implications from Wilcox’s lawsuit.