For the first time in the 90-year history of the National Labor Relations Act, a president has summarily fired a member of the NLRB mid-term.
Gwynne Wilcox, the first Black woman to serve on the Board and its Chairman under former President Biden, learned by a late-night email from President Trump’s staff that she was, “…hereby removed from the office of Member of the National Labor Relations Board.”
Wilcox filed a complaint in the United States District Court for the District of Columbia on February 5, 2025, asking the court to declare her firing illegal under the NLRA and U.S. Supreme Court precedent; and for an injunction ordering her reinstatement with full rights as a Board member (In the District Court for the District of Columbia, Gwynne A. Wilcox v Donald J. Trump and Marvin E. Kaplan, Case 1:25-CV-00334).
The complaint in Wilcox v Trump and Kaplan alleges that the firing is a, “…blatant violation of the National Labor Relations Act, 29 U.S.C. sec. 151 et seq., which allows the President to remove Board members only in cases of ‘neglect of duty or malfeasance in office, but for no other cause,’ and only after ‘notice and hearing’ 29 U.S.C. sec 153(a).”
The complaint further alleges that the summary termination without a showing of cause, “…defies ninety years of Supreme Court precedent that has ensured the independence of critical government agencies like the Federal Reserve.”
NLRB members serve staggered five-year terms and are appointed by the president with advice and consent of the senate. Wilcox was confirmed as a member of the NLRB on August 4, 2021, and confirmed for a second term on September 6, 2023 – a term that will end on August 27, 2028.
The complaint goes on to state, “Ninety years ago, Congress established the National Labor Relations Board as an independent federal agency charged with remedying the ‘inequality of bargaining power’ between employers and employees ‘by encouraging...collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.’”
The complaint alleges, “Congress expressly provided that the Board’s members do not serve at the pleasure of the President but instead can be removed only for cause. The NLRA provides that a ‘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.”
According to the lawsuit, the termination email, “…cites the President’s belief that ‘heads of agencies within the Executive Branch must share the objectives of (his) administration.” Wilcox argues that this is a purely political purpose that does not meet the just cause requirements for termination of a Board member.
The legislative history of the NLRA shows that Congress intended the NLRB to have autonomy and be independent of the executive branch to prevent immediate political reactions from elections from upending the Board’s ability to be a fair and impartial adjudicator of disputes under the Act.
The President does have authority to remove Wilcox from the chairmanship of the Board, as he did in naming Marvin E. Kaplan, a Republican, as chairman. Kaplan previously chaired the Board during Trump’s first term.
With Wilcox terminated from the Board, only two members remain – Chairman Kaplan and Democratic appointee David Prouty, whose term will end in August of 2026. That leaves the Board without a quorum to conduct its duties under the NLRA.
Some labor relations pundits predicted that Trump would attempt agency member terminations to test the balance between Congressional acts and the power of the presidency. It will be interesting to see how this power struggle is resolved.
Trump also fired NLRB General Counsel Jennifer Abruzzo and her replacement, NLRB Acting General Counsel Jessica Rutter. He appointed William B. Cowen, a Republican and former Board member, as Acting General Counsel.
These NLRB changes come as Trump has also removed Democratic U.S. Equal Employment Opportunity Commission Commissioners Charlotte A. Burrows and Jocelyn Samuels. He also fired EEOC General Counsel Karla Gilbride.
Things are really up in the air with the NLRB until there are new Trump appointments to the General Counsel and Board member positions, along with Senate approval, as well with the Wilcox lawsuit and undoubtedly other legal challenges that will follow.
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