Labor & Employment Law Daily Wrap Up, LABOR—D.D.C.: Trump lacked authority to remove NLRB Member Gwynne Wilcox, (Mar 7, 2025)

By Jason Albright, J.D.

“An American President is not a king…”

The President does not have the authority to terminate members of the National Labor Relations Board at will, and President Trump’s attempt to fire NLRB Member Gwynne Wilcox was “a blatant violation of the law,” a federal district judge in D.C. found. Humphrey’s Executor and its progeny control the outcome of the case, the administration conceded that Wilcox’s removal violated the NLRA, and “because the statute is a valid exercise of congressional power, the President’s excuse for his illegal act cannot be sustained,” concluded the court (Wilcox v. Trump, No. 25-334 (BAH) (D.D.C. Mar. 6, 2025)).

Statutory background of the NLRA. Beginning with a statutory background of the NLRA, enacted in 1935, the court observed that, although both NLRB members and the Board’s General Counsel are appointed by the President with “advice and consent” from the Senate, only the Board is protected from removal at-will by the President, who is authorized by the Act to remove a Board member “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” 29 U.S.C. § 153(a). “Such restrictions were intentional,” according to the court because “much like many other multimember entities, the Board was designed to be an independent panel of experts that could impartially adjudicate disputes.”

Five-year term. The Board member and plaintiff in the present dispute, Gwynne Wilcox, was nominated by President Biden and confirmed by the Senate to a second five-year term as member of the NLRB in September 2023. She was designated Chair of the NLRB in December 2024.

Wilcox’s late-night termination. Shortly after taking office in January 2025, however, President Trump moved Marvin Kaplan, a sitting Board member and named defendant in the case, into the position of Chair, replacing Wilcox.

Then, on January 27, Trump “terminated” Wilcox from her position on the Board via an email sent shortly before 11:00 p.m. by the Deputy Director of the White House Presidential Personnel Office. Wilcox’s termination was not preceded by “notice and hearing,” nor was any “neglect of duty or malfeasance” identified, despite the explicit restrictions in the NLRA on the President’s power to remove a Board member.

The email instead cited only political motivations, according to the court—“that plaintiff does not share the objectives of the President’s administration”—and asserted, in a footnote, that the restriction on the President’s removal authority is unconstitutional as “inconsistent with the vesting of the executive Power in the President.”

Kicked out, Board stymied. The NLRB’s Director of Administration, who reports directly to Kaplan, began the termination process, cutting off Wilcox’s access to her accounts and instructing her to clean out her office. The Board already had two vacancies, and presently, without Wilcox, it is reduced to two sitting members—one short of the three-member quorum required to operate. Wilcox’s removal has thus “stymied the functioning of the Board,” according to the court.

Lawsuit. Wilcox sued in federal district court in D.C., challenging her removal and requesting injunctive relief against Kaplan so that she may resume her congressionally mandated role. Recognizing that the case involves a pure question of law, she moved for expedited summary judgment on February 10, and the defendants responded with a cross-motion for summary judgment, with briefing completed on a condensed schedule. Following a hearing, held on March 5, the parties’ cross-motions for summary judgment were ready for resolution.

Humphrey’s Executor. The NLRB, the court initially observed, “is a paradigmatic example of a multimember group of experts who lead an independent federal office.” Indeed, “Since the early days of the founding of this country, Congress, the President, and the Supreme Court all understood that Congress could craft executive offices with some independence, as a check on presidential authority.”

That understanding, said the court, “has not changed over the 150-year history of independent, multimember commissions, nor over the 90-year history of the NLRB.” Indeed, the Supreme Court recognized this “history and tradition” in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), which upheld removal protections for such boards or commissions as “a well-reasoned reflection of the balance of power between the political branches sanctioned by the Constitution,” in the words of the court. “The Supreme Court explicitly upheld removal restrictions for such boards when considering removal protections for the commissioners of the FTC in Humphrey’s Executor in 1935, while also recognizing the President’s general authority over removal of executive branch officials.”

Legislating in the shadow of Humphrey’s Executor. “Two months later,” continued the court, “with the guidance supplied in Humphrey’s Executor and following the model of the FTC as endorsed by the Supreme Court there, Congress established the National Labor Relations Board.” Not coincidentally, both entities—the FTC and NLRB—have five-member leadership boards with staggered terms of several years, “minimizing instability and allowing for expertise to accrue,” the court noted. “Both were intended to exercise impartial judgment,” and “[t]he Board, like the FTC, is ‘predominately quasi judicial and quasi legislative’ in nature, with the primary responsibility of impartially reviewing decisions made by ALJs.” And in fact, the Board neither prosecutes labor cases nor enforces its own rulings. The side of the NLRB managed by the General Counsel—who is removable at-will by the President—carries out those more “executive” powers. See 29 U.S.C. § 153(d).

Rejecting the administration’s suggestion that the presidential removal power has ever been viewed as unrestricted, the court observed that Humphrey’s Executor, and thus NLRB Board members’ removal protections, are “consistent with the text and historical understandings of Article II, as well as the Supreme Court’s most recent pronouncements. That Congress can exert a check on the President by imposing for-cause restrictions on the removal of leaders of multimember boards or commissions is a stalwart principle in our separation of powers jurisprudence.”

Declaration. The court thus found that Wilcox prevailed on the merits and was entitled to a declaratory ruling that she was unlawfully terminated from her position as a member of the Board.

Injunction. Next, the court turned to Wilcox’s request for injunctive relief against Kaplan, ordering him to allow her to carry out all her duties as a Member of the Board. To demonstrate that injunctive relief is warranted, a plaintiff must show that (1) she has suffered an irreparable injury, (2) remedies available at law are inadequate to compensate, (3) a remedy in equity is warranted considering the balance of the hardships to each party, and (4) the public interest is not disserved.

Irreparable harm and inadequate remedies at law. The court found the first two factors met. Wilcox “has been deprived of a presidentially appointed and congressionally confirmed position of high importance, and both she and, by consequence, the NLRB have been deprived of the ability to carry out their congressional mandate in protecting labor rights—which cannot be retroactively cured by monetary damages.”

In addition, concluded the court, Wilcox and the NLRB “suffer an injury due to the loss of the office’s independence. As an entity entrusted with making impartial decisions about sensitive labor disputes, the NLRB’s character and perception as neutral and expert-driven is damaged by plaintiff’s unlawful removal.”

Balance of equities and public interest. The balance of the equities and the public interest also favored injunctive relief. First, observed the court, “the public has an interest in efficient and peaceful resolution of labor conflicts, and the Board’s functioning is crucial to that goal. In 2024, the NLRB received 20,000 to 30,000 unfair labor practice charges, and the Board reviewed 144 unfair labor practice cases and 115 election certification cases.” In the absence of a functioning NLRB, “unfair labor practices go unchallenged, union elections go unrecognized, and pending labor disputes go unreviewed.” Here, the court parenthetically noted one example cited by Wilcox: “Whole Foods has refused to recognize a union election because it claims the NLRB lacks the authority to certify it.”

Reinstating Wilcox, noted the court, would allow the NLRB to reach a quorum, “thereby allowing the Board to carry out the important work in promoting labor stability, adjudicating labor disputes, and protecting workers’ rights, without inflicting any measurable harm on defendants.”

Executive power slipping away? The administration argued that the President, for his part, would experience harm from retaining “a principal officer whom the President no longer believes should be entrusted with the exercise of executive power,” resulting in the executive branch “slip[ping] from the Executive’s control, and thus from that of the people.”

The court was unmoved, noting, “President Trump can exercise control over the NLRB by appointing two members of his choosing to the vacant seats and appointing a General Counsel who will adopt his enforcement priorities; he simply has chosen not to do so.”

Illegitimacy or chaos? Nor was the court moved, in light of the administration’s prediction of its ultimate success before the Supreme Court, by the argument that “the NLRB will be under a heavy cloud of illegitimacy” if Wilcox is allowed to resume her duties now. “The possibility of future changes in the law is not enough… to permit an unlawful termination and the halting of all Board activity in the meantime,” the court observed. Wilcox’s “wrongful termination has caused ‘chaos’ enough and shall not be allowed to stand based on defendants’ self-serving speculation.”

The case is No. 25-334 (BAH).

Judge: Howell, B.

Attorneys: Gregory A. Beck (Gupta Wessler) for Gwynne A. Wilcox. Alexander William Resar, U.S. Department of Justice, for Donald J. Trump and Marvin Kaplan.

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