Late on Monday, January 27, President Trump said “you’re fired” to two key National Labor Relations Board (NLRB) officials. The dismissal of NLRB General Counsel Jennifer Abruzzo was widely expected and follows precedent set by President Biden when he fired Peter Robb, the NLRB General Counsel installed during the first Trump administration, on his first day in office. President Biden’s termination of Robb was upheld by various federal circuit courts. See Rieth-Riley Constr. Co. v. NLRB, 114 F.4th 519 (6th Cir. 2024) (holding the president can remove the NLRB General Counsel at will).
The NLRB’s General Counsel serves an important role, acting as the agency’s chief prosecutor and overseeing the NLRB’s regional offices that investigate unfair labor practice charges and oversee union elections. With Abruzzo out, President Trump will have an opportunity to appoint an NLRB General Counsel more aligned with his administration’s likely more pro-employer policy agenda. For now, Abruzzo’s Deputy General Counsel, Jessica Rutter, is serving in an interim role.
President Trump’s dismissal of NLRB member Gwen Wilcox came as more of a surprise, as no President has ever fired a sitting NLRB member during a member’s five-year term set by the National Labor Relations Act (NLRA). Wilcox was appointed by President Biden and confirmed by the Senate to serve a term ending in August 2028, and her ouster is sure to tee up legal challenges. The NLRA only allows the president to remove NLRB members “for neglect of duty or malfeasance in office, but for no other cause.” A case involving the Federal Trade Commission (FTC) long upheld similar removal protections. Humphrey’s Executor v. United States, 295 U.S. 602 (1935). More recently, however, the Supreme Court has limited the scope of Humphrey’s Executor, holding that the precedent only applies to agencies that share similar characteristics to the FTC. Seila Law LLC v. Consumer Fin.l Prot. Bureau, 591 U.S. 197 (2020).
Former member Wilcox has already promised to pursue “all legal avenues to challenge my removal, which violates long-standing Supreme Court precedent.” A challenge will present an opportunity for the courts to opine on the power of the president to remove appointees from independent agencies, such as the NLRB, notwithstanding statutory restrictions on that right imposed by Congress.
President Trump’s move leaves the NLRB with just two members—not enough for a quorum to make decisions according to the 2010 Supreme Court case, New Process Steel, LP v. NLRB, 560 U.S. 674 (2010). It remains to be seen when or if President Trump will nominate new members to fill the now three vacancies at the NLRB. For now, open cases will be stagnant at the NLRB level, but the NLRB’s regional offices will continue to process new charges and elections, and administrative law judges will continue to hold hearings. We will be sure to update you with further developments at the NLRB from the Trump administration and as expected litigation unfolds. For more information, please contact Greg Ripple at gripple@vedderprice.com, Ken Sparks at ksparks@vedderprice.com, Peyton Demith at pdemith@vedderprice.com, or any other Vedder Price attorney with whom you have worked.