In a significant move, President Donald Trump has fired a member of the National Labor Relations Board (“NLRB” or “Board”) without reference to the statutory protections that typically shield Board members from being removed without cause. While incoming administrations, regardless of party, have historically taken steps to populate federal appointments with individuals aligned with their goals and policies, the Trump Administration is doing so at a pace and intensity rarely, if ever, seen before. President Trump’s removal of NLRB member Gwynne Wilcox (“Wilcox”) has immediate impact on employers, unions, and workers, as it leaves the Board without the quorum needed to issue decisions in labor cases. The President’s authority to remove Board members will be tested in court and could impact the future of the NLRB and the landscape of U.S. labor law.

Background

In September 2023, the Senate confirmed Wilcox to a second five-year term through the end of August 2028. Former Chairman and Democrat appointee Lauren McFerran’s (“McFerran”) term expired on December 16, 2024, after the Senate voted not to advance her nomination, signaling the Republican-led Senate’s intention to change the Board’s composition. At the time of McFerran’s non-renewal, there was already a vacancy on the Board, leaving two possible spots for President Trump to fill upon taking office. President Trump’s removal of Wilcox on January 27, 2025, now leaves three of the five seats for NLRB members vacant and eliminates what would have otherwise been a Democratic majority on the Board. The only current members (for now) are Republican appointee Marvin Kaplan, who the President named the Chair of the NLRB on Inauguration Day, and Democrat appointee David Prouty, whose term is set to end in August 2025.

Impact on the NLRB and Employers

The immediate consequence of Wilcox’s removal is the NLRB’s lack of a quorum, meaning it cannot issue decisions and will leave many pending cases in limbo. The Board’s authority to issue decisions will be halted until a quorum is restored, either through the Senate confirming a new member appointed by President Trump or Wilcox being reinstated.

For employers, this development could be a double-edged sword. On one hand, the freeze in NLRB decisions may delay rulings that could have been unfavorable to employers with pending cases before the Board. On the other hand, during the Biden administration, the Board issued a number of decisions that were favorable for unions and expanded protections for employee rights under the National Labor Relations Act. Without any further rulings, those decisions will remain the law for now. It is widely expected that a Trump NLRB would look to overturn much of that precedent and issue pro-employer decisions. The Board’s ability to do that is now hindered until the member seats are filled.

President Trump’s Constitutional Justifications

President Trump’s legal justification for the removal of Wilcox hinges on a 2020 Supreme Court decision in Seila Law LLC v. CFPB. In Seila Law, the Supreme Court held the executive authority did not extend to removal of members of multi-member agency boards that are: 1) balanced on partisan lines; and 2) perform legislative and judicial functions but not executive functions. Such a “removal shield” prohibits the president from exercising executive authority to remove members from agency boards if meeting these conditions. In firing Wilcox, President Trump specifically cited Seila Law, claiming the NLRB does not qualify for the exception because it is not balanced on partisan lines and because it exercises executive powers, such as issuing regulations and pursuing enforcement actions in federal court.

President Trump’s interpretation will be challenged in federal court. Wilcox has already indicated her intention to pursue “all legal avenues” to contest her removal, citing long-standing Supreme Court precedent that protects NLRB members from being fired without cause. In addition to addressing the extent of presidential powers to remove NLRB members, the legal fight over Wilcox’s firing ultimately may provide a precedent for companies and the numerous lawsuits that have been filed over the past year pursuing constitutional challenges against the NLRB, including on the basis that the Board’s members and administrative law judges are unconstitutionally shielded from removal by the president.

Simultaneous Overhauls at the EEOC

President Trump’s recent actions are not limited to the NLRB. On January 28, 2025, President Trump also fired Jocelyn Samuels and Charlotte Burrows, two Democratic commissioners of the Equal Employment Opportunity Commission (“EEOC”), along with the EEOC’s general counsel, Karla Gilbride. This move eliminates the Democratic majority on the EEOC. By dismissing the EEOC commissioners, President Trump has taken steps to advance his second-term civil rights law agenda.

Conclusion

President Trump’s removal of an NLRB member and two EEOC commissioners reflects the administration’s broader strategy to reshape independent agencies to align with the administration’s policy goals. President Trump’s assertion of power to remove NLRB members and EEOC commissioners marks a pivotal moment in labor relations and regulatory oversight of employers. The legal battles and policy shifts that follow are expected to shape the landscape for employers, creating a period of uncertainty. Attorneys in the Labor & Employment practice group at Blank Rome are prepared to assist as potential changes in labor law enforcement and agency operations arise.