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On March 6th, 2025, the U.S. District Court for the District of Columbia ruled on an issue brought forward by a former National Labor Relations Board member. Specifically, former National Labor Relations Board (NLRB) member Gwynne Wilcox was removed from her position in late January. The firing by President Donald Trump was considered controversial as it occurred before the end of Wilcox’s five-year term. Consequently, it left the NLRB with only two members: Chair Marvin E. Kaplan, a Republican, and Member David M. Prouty, a Democrat. The district court, however, found that Board Member Wilcox’s firing was illegal.
The Previous State of the National Labor Relations Board Before the Ruling
In summary, the fact that the NLRB only had two members meant that it was operating without a “quorum.” Due to that, the NLRB was limited in certain operations. Specifically, the NLRB could not:
- Issue any decisions,
- Issue regulations, or
- Take any action that requires NLRB approval.
Background of Board Member Wilcox’s Lawsuit
In addition to protecting worker rights, the National Labor Relations Act (NLRA) provides that NLRB board members serve five-year terms. Explicitly, they can only be removed before their terms end for “malfeasance” or “neglect of duty.” Consequently, the board member must also be given “notice and a hearing.” According to Littler, none of these terms are defined in the statute. However, the terms have been understood generally to require a president to show “cause” before firing a member.
In January 20215, however, President Trump fired Board Member Wilcox, explaining that he lost confidence in her ability to lead. The President’s representatives also argued that the NLRA’s criteria for member removal were invalid. (Basically, they argued that the current criteria violated the rule of “at-will” removal.)
Markedly, Member Wilcox challenged that argument. She believed the NLRB’s removal protections fell within an exception established by Humphrey’s Executor v. United States. Under that case from 1935, the Supreme Court dealt with the power of the President to remove executive officials appointed with the consent of the Senate. In summary, the Supreme Court ruled that the President could not remove commissioners of government organizations that work independently from the Executive branch of government without cause. In the case of the original ruling, removing a Federal Trade Commission (FTC) member was under question. Likewise, the NLRB is an entity that works independently from the Executive branch. Therefore, according to Wilcox, since Humphrey’s Executor has never been overturned, the president had no right to fire her without cause.
Overview of the Federal District Court Decision
In short, the district court agreed with Board Member Wilcox. According to the ruling, Humphrey’s Executor is still in place and applies to this situation. Very importantly, however, it must be noted that the district court did not order the president to reinstate her. Instead, the court ordered the Board’s current chair, Marvin Kaplan, not to prevent her from doing her job. In other words, she cannot be:
- denied access to the building,
- blocked from accessing NLRB digital systems, or
- denied her ability to serve as a board member.
Such a decision allows Wilcox to serve out her original term.
Employer Takeaways
In conclusion, in light of these developments, the NLRB is now operating under a quorum, and rulings on open issues can continue. It is important to note that nothing has changed regarding the regulations and rulings that the NLRB has made in the past. A good rule of thumb is ensuring that each work rule is followed as closely as possible to the initial NLRB rule to fulfill its intended purpose.
