Labor & Employment Law Daily Wrap Up, ON THE LABOR FRONT—Humphrey’s Executor is Not Dead Yet..... But the End May be Near, (Apr 25, 2025)

By Michael J. Soltis

On April 9, Chief Justice John Roberts stayed restoration of Member Gwynne Wilcox to the NLRB, reversing an en banc decision issued by the D.C. Circuit.

The National Labor Relations Board (NLRB) is well-known for its flip-flops on national labor policies but a Board member’s flip-flopping on to and off of the Board is unprecedented.

On January 27, 2025, a week after his second inauguration, President Donald J. Trump removed Member Gwynne A. Wilcox from the NLRB before the expiration of her term. The National Labor Relations Act (NLRA) states that a member can be removed only “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” The Trump Administration claims that tenure protection for NLRB members is unconstitutional because it interferes with the President’s authority under Article II of the Constitution to “take care” that the laws be “faithfully executed.”

Wilcox promptly sued Trump and NLRB Chair Marvin Kaplan, claiming her removal was unlawful and seeking an injunction to allow her to resume her role as an NLRB member. In support of her argument, Wilcox points to the language of the NLRA and the Supreme Court’s 1935 decision in Humphrey’s Executor v. United States which upheld tenure protection for members of multi-member boards which do not wield executive power. The Trump Administration argues that Humphrey’s Executor, applied correctly, supports its position since the NLRB exercises executive power and that subsequent Supreme Court cases have so narrowed Humphrey’s Executor it has effectively been overruled, or at least limited to its facts.

For additional discussion of the viability of the Humphrey’s Executor decision, see Mike Soltis’ latest On the Labor Front article: Humphrey’s Executor is Not Dead Yet..... But the End May be Near.

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