US Supreme Court denies interim reinstatement of National Labor Relations Board member

At a glance

• The National Labor Relations Board (NLRB) has been largely inactive due to a lack of quorum over the past six months.
• The recent Trump v. Wilcox case involving President Trump’s attempt to remove NLRB Member Gwynne Wilcox before her term ended, was challenged as unlawful.
• The Supreme Court issued a stay allowing the removal to stand temporarily, without ruling on the broader issue of presidential removal powers.
• A final ruling allowing at-will presidential removal of NLRB members could reshape the board’s independence and affect other federal agencies.
• Justice Kagan, joined by Justices Sotomayor and Jackson, argued that precedent protects NLRB members from such removals, warning of broader implications.

Without a quorum, the NLRB docket has quieted down in the last six months. Based on the US Supreme Court’s recent ruling in Trump v. Wilcox, employers are expected to experience a continued reprieve for the foreseeable future.

The case stems from President Donald Trump’s decision to remove NLRB Member Gwynne Wilcox before the expiration of her term. The government applied for a stay from a district court order enjoining her removal on the grounds that President Trump is prohibited by statute from removing NLRB members except for cause and no qualifying cause was provided.

The Supreme Court granted a stay pending the disposition of the appeal in the US Court of Appeals for the DC Circuit and any petition for a writ of certiorari. It did not reach the underlying question of whether a president may summarily remove members of the NLRB.

The Supreme Court noted that the stay 'reflects our judgment that the government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.'

In a dissent joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, Justice Elena Kagan argued that the Court’s decision in Humphrey’s Executor v. United States (1935), protects members of bipartisan administrative bodies from presidential control and should foreclose President Trump’s firings and the Court’s decision awarding emergency relief.

A final decision allowing a president to remove officers from the NLRB at will would be significant. Under existing law, the NLRB is a quasi-judicial body tasked with investigating, prosecuting, and remedying unfair labor practices in violation of the National Labor Relations Act.

The president nominates NLRB members, who must be confirmed by the US Senate. Each member is nominated to serve a five-year term. When fully staffed, the NLRB is comprised of five members, with three required for a quorum. Without a quorum, the NLRB cannot adjudicate cases or issue decisions.

A presidential power to remove members without cause could allow each president to nominate a new slate of NLRB members entirely, which could complicate labor compliance obligations. The ultimate decision could also impact other federal agencies.

We will continue to monitor developments in this area.