There’s a good chance not one in a 1,000 workers has ever heard the name Gwynne Wilcox, but President Donald Trump’s attempt to fire her on Jan. 27 threatened to grind to a halt one of the most important U.S. labor agencies.
On March 6, a federal judge ordered Wilcox reinstated to her position as a member of the National Labor Relations Board (NLRB), and she returned to the NLRB’s Washington headquarters March 10 to the cheers of agency employees.
The NLRB administers elections when private sector workers want to unionize. It also protects workers’ right to take collective action and bars employers from retaliating against workers for union involvement. The agency is led by a general counsel who prosecutes unfair labor practice cases and oversees field agents and investigators, and a five-member quasi-judicial board that interprets labor law and rules on appeals of administrative law judge decisions.
Both the general counsel and the board are appointed by the president and confirmed by the Senate, but to give the agency some independence, the law that created the NLRB gives board members five-year staggered terms and bars their removal except “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” In 90 years, no president until Trump had ever attempted to fire a board member.
Appointed by President Joe Biden, Wilcox was confirmed by the Senate in September 2023, and her term doesn’t expire until August 2028. And yet shortly before 11 p.m. Jan. 27, the Deputy Director of the White House Presidential Personnel Office emailed Wilcox saying she was terminated. She filed suit Feb. 5 and got quick action in federal court.
“The President does not have the authority to terminate members of the National Labor Relations Board at will, and his attempt to fire plaintiff from her position on the Board was a blatant violation of the law,” wrote Senior Judge Beryl Howell of the U.S. District Court for the District of Columbia.
The Board already had two vacancies, because last year the Senate failed to confirm one of Biden’s nominees. Without Wilcox, the Board would lack the quorum it needs legally to function. Trump has not nominated any new board members, so it’s a fair assumption that he intended to stop the board from functioning when he tried to fire Wilcox.
Judge Howell rejected arguments by White House lawyers that the constitution gives the president unrestricted power to remove executive officers, and pointed to Supreme Court decisions affirming that Congress has the power to create independent agencies in which presidential appointees serve fixed terms and can’t be removed except for cause. Congress has been creating independent agencies along those lines since 1887. Other examples include the Federal Reserve Board, the Federal Trade Commission, the Federal Energy Regulatory Commission, and the Consumer Product Safety Commission.
“President Trump can exercise control over the NLRB by appointing two members of his choosing to the vacant seats and appointing a General Counsel who will adopt his enforcement priorities,” Howell wrote. “He simply has chosen not to do so.”
The Trump administration is appealing the decision to the U.S. Circuit Court of Appeals.
