On January 27, 2025, President Trump removed National Labor Relations Board (NLRB) member Gwynne Wilcox, and General Counsel Jennifer Abruzzo. The removal of Wilcox leaves the NLRB with fellow Democrat David Prouty and Republican Kevin Kaplan, as the remaining members of the five-member Board. The Board no longer has a three-member quorum and thus cannot decide cases. However, NLRB offices can continue to process cases. The General Counsel’s office generally acts through authority delegated to NLRB regional offices and thus can continue usual operations.
Abruzzo’s removal was expected, as President Biden fired the prior Republican-appointed General Counsel following his swearing-in ceremony. However, the removal of Board members themselves was not expected. On the same day, President Trump removed two Democrat members of the Equal Employment Opportunity Commission, leaving the five-member Commission without a quorum. The EEOC General Counsel said that she too had been informed by the White House that the President did not want her to remain in that position.
Andrea Lucas, who was brought into the Commission in 2020, has been appointed to serve as Acting Chair. The newest member of the Commission and a Biden appointee, Kalpana Kothel, remains on the five-member Commission.
Both former EEOC Chair Charlotte Burrows, and former NLRB Chair Gwynne Wilcox at the NLRB, have indicated that they intend to challenge their removal prior to the end of their term. An old 1935 U.S. Supreme Court decision in Humphrey’s Executor v. U.S. supports removal protections for many independent agencies. However, the Supreme Court in recent years upheld such firings for independent agencies with single directors but hasn’t addressed the President’s firing of NLRB members or EEOC members for any reason.
The immediate result is that for a period of time the NLRB and EEOC will be unable to take certain actions, and issues have already arisen as to whether if Wilcox’s termination is deemed unlawful, the decisions made by the NLRB in the interim even if quorum is reached, can be legally attacked.
This article is part of our March 2025 Newsletter.
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