Trump Fires Democratic NLRB Member Gwynne Wilcox

Setting up for a constitutional challenge.

According to Josh Eidelson and Lauren Gurley, Trump just fired Board member Gwynne Wilcox. This is the third entry on my Timeline of Notable NLRB Events During Trump's Second Term.

Here are a three quick points to understand the significance of this:

1. Section 3(a) of the NLRA states that “Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” Trump’s firing of Wilcox is not for neglect of duty or malfeasance and therefore violates the NLRA. In a statement, Wilcox said she will sue.

2. This move is consistent with a conservative legal theory that has become popular over the last couple of years. That theory, discussed in a prior NLRB Edge post, points to the language in Article II of the Constitution that requires that the president “shall take Care that the Laws be faithfully executed” to argue that removal protections for NLRB members and NLRB Administrative Law Judges are unconstitutional. As discussed in a prior NLRB Edge post, federal courts in the Fifth Circuit have already been seizing upon this theory to enjoin NLRB proceedings against employers.

3. The removal of Wilcox brings the five-seat NLRB down to two members. In New Process Steel, the Supreme Court ruled that the NLRB needs three members to have a quorum. Thus, until Trump appoints a third NLRB member, the NLRB will not be able to issue decisions. Trump could opt not to fill any NLRB vacancies and prevent the agency from issuing decisions for his entire term.