In a prior article (link) we alerted you to the changes made in the early days of the Trump Administration at the National Labor Relations Board. At that time, the President removed the Board’s Chairman and General Counsel and fired Board Member Gwynne Wilcox. Under the National Labor Relations Act a Board Member can be fired, or removed, for “malfeasance” or “neglect of duty”. Additionally, the Act requires a “notice and a hearing” prior to removal. The President cited neither of the above reasons for Wilcox’s removal nor afforded her a hearing. While the terms malfeasance and neglect of duty are not defined in the statute, it generally has been understood that the administration would have to prove that it had good cause for the removal in a hearing.
While the Board is an agency within the executive branch providing the President with almost unchecked power, it has been accepted law since the 1930s that the heads of certain agencies are provided with limited protections preventing their removal. The case establishing this principle is Humphrey’s Executor v. United States. The rationale is that some agencies are not run by a single department head but are “quasi-legislative” or “quasi-judicial”. Therefore, according to this decision, there is some protection from unbridled executive control.
Member Wilcox sued the Administration seeking reinstatement. Wilcox cited the applicability of Humphreys Executor and the fact that the President did not cite either malfeasance or neglect of duty as reasons for her removal. Rather, he simply stated that he had lost confidence in her ability to lead the Board and did not provide her with a hearing prior to her removal.
A U.S. District Court ruled in Ms. Wilcox’s favor relying upon the Humphrey’s Executor rationale. The court opined that the nature of the Board is quasi-judicial in nature as it investigates unfair practices and renders adjudications in an administrative process. The court held that this process is similar to that before the court in Humphrey’s Executor, which provided Member Wilcox with protections which were violated by her removal.
In a somewhat strange order resulting from the decision, the court did not order that Member Wilcox be reinstated, but ordered that she cannot be denied access to NLRB offices and cannot be interfered with her ability to serve as a Board member. Apparently, this order was an attempt by the court to not create an issue over whether the court was “appointing” a member of the Board; a duty reserved to the President. Because of this decision, the Board once again has three active members providing it with a quorum to render decisions.
Despite the foregoing, the Humphrey’s Executor theory has been under attack by the Supreme Court which recently narrowed protections for executive officers. The Supreme Court, while not yet overruling Humphrey’s Executor, has previewed its potential willingness to do so, claiming that protections of executive officers interferes with the President’s ability to manage the executive branch.
The administration has appealed this decision to the Court of Appeals in Washington, D.C., along with a request that the court issue a stay of the lower court decision while the appeal proceeds.
We will keep you apprised of all further developments.