The National Labor Relations Board (NLRB) has made a significant shift in its legal stance regarding the removal of its members. The agency, which oversees labor rights for private-sector workers, is no longer defending a law that protects its appointees from being fired at will by the president. This change comes as President Donald Trump attempts to remove a Democratic member from the board.
Recently, the NLRB informed courts in at least six cases, including one involving SpaceX, that it believes the removal protections for board members and administrative judges are unconstitutional. This marks a departure from its previous position, where the board argued that these protections were essential for maintaining independence in handling cases related to workers’ rights.
Federal judges have previously upheld these protections in several lawsuits against the NLRB. Just last week, a judge in Washington, D.C., ruled that Trump could not fire NLRB member Gwynne Wilcox, leading to an appeal from the administration. The law states that NLRB members can only be removed for neglect of duty or malfeasance.
The NLRB’s new position was influenced by a letter from acting U.S. Solicitor General Sarah Harris, which claimed that the removal protections were invalid. Critics of the NLRB, such as Patrick Semmens from the National Right to Work Foundation, argue that the agency’s structure has allowed it to impose labor policies without accountability. Semmens expressed satisfaction that Trump’s actions against Wilcox might expedite a review by the Supreme Court.
This decision not to defend removal protections could change how courts approach related legal issues. However, experts believe the Supreme Court may still appoint a lawyer to argue in favor of the protections, despite the NLRB’s current stance. Lauren McFerran, a former chair of the NLRB, warned that eliminating these protections could undermine the board’s neutrality, especially in cases involving political donors.
Trump’s efforts to fire Wilcox have already created turmoil within the NLRB, which was left without a quorum to make decisions after her removal. In a related case, a federal judge in Texas sided with SpaceX, agreeing that the removal protections were unlawful and halting an NLRB investigation into the company.
Elon Musk, CEO of SpaceX and a close ally of Trump, is known for advocating for a reduced federal workforce and cutting government spending. As this legal battle unfolds, the implications for the NLRB and labor rights in the U.S. remain significant.