On January 27, 2025, President Trump terminated Jennifer Abruzzo, the general counsel of the National Labor Relations Board, and Board Member Gwynne Wilcox. Abruzzo’s termination was widely expected (with some wondering why she was not fired on the first day of the new administration); Wilcox’s termination is somewhat more surprising, and, if held to be lawful, would deprive the Board of a quorum to do business until successor members are confirmed.

The National Labor Relations Act provides that Board members are appointed for five-year staggered terms, and “may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” The Board’s general counsel, who wields significant prosecutorial discretion, is appointed for a four-year term, and is not afforded the same protection from removal as Board members. Member Wilcox’s term was scheduled to expire in August 2028; General Counsel Abruzzo’s term was set to expire later this summer.

Historically, a change of presidential administration did not result in removal of NLRB personnel. That changed, however, on Inauguration Day in 2021, when then-President Biden terminated former NLRB General Counsel Peter Robb. Robb’s termination was upheld by several circuit courts of appeals. To date, no Board member has been terminated in the Act’s history. The White House maintains that it had cause to fire Wilcox, who served as chair of the Board from December 17, 2024, until her termination. Wilcox has stated that she will challenge the lawfulness of her removal under the statutory malfeasance provision.

Under the U.S. Supreme Court’s ruling in New Process Steel, L.P. v. National Labor Relations Board, 560 U.S. 674 (2010), with fewer than three sitting members, the Board lacks a quorum to do business. In New Process, the Court held that decisions issued by a two-member Board were not valid, although many of those decisions were later ratified by a full Board. The full Board also ratified all administrative, personnel, and procurement actions made during the time the Board had only two members. Employers facing enforcement of actions taken by a two-member Board will want to bear this decision in mind if they seek to challenge the Board’s efforts.

The termination of Member Wilcox is literally unprecedented, and it is unclear whether courts will ultimately hold that she was validly terminated for cause, or, more broadly, that the president has the authority to remove NLRB members for any reason, even in the face of the Act’s “cause” provision. Longstanding Supreme Court precedent—specifically, a case known as Humphrey’s Executor, 295 U.S. 602 (1935)—stands for the proposition that Congress can lawfully limit the removal of members of multi-member independent agencies only for cause. But in recent years, the Supreme Court has limited congressional efforts to “insulate” executive appointees, and Member Wilcox’s termination could ultimately challenge whether Humphrey’s Executor remains good law today.

It is also not yet clear whether and when the White House will nominate individuals to fill the open seats on the Board. Although it has been the custom that three members of the Board come from the president’s party, with two members from the opposing party, that is not a requirement. With the removal of Member Wilcox, the Board’s current composition is Chair Marvin Kaplan, a Republican, whose term expires in August 2025, and Democratic Member David Prouty, whose term is scheduled to expire in August 2026.

Littler’s Workplace Policy Institute (WPI) will keep readers apprised of developments in this rapidly changing area.