Standing Up for the Independence of the NLRB

Attacks on the National Labor Relations Board’s leaders undermine their work and independence.

When my service as a member of the National Labor Relations Board (NLRB) began, I could never have imagined the way it would end. I was first appointed as an NLRB member to serve out the remainder of a five-year term in August 2021, and in August 2023, the U.S. Senate confirmed me to serve an additional five-year term. I was the first Black woman ever appointed as an NLRB member, and in December 2024, President Joseph R. Biden designated me as chair.

As an NLRB member, it was my job to fairly adjudicate cases by applying the National Labor Relations Act (NLRA), a 90-year-old law that protects workers’ rights to engage in mutual aid, organizing, and collective bargaining. In the 90-year history of the law, NLRB members have never once been removed before their term expired, as it violates the NLRA to do so without cause. But less than halfway through my second term, on January 27, 2025, President Donald J. Trump’s Office of Presidential Personnel notified me that I was being removed from office, effective immediately. The Office’s email did not assert that I was being removed for cause.

Immediately after the President removed me, I filed a lawsuit in the U.S. District Court for the District of Columbia challenging my removal, and on March 6, Judge Beryl Howell issued an injunction restoring me to service. I returned to the NLRB briefly before a panel of the U.S. Court of Appeals for the District of Columbia stayed the injunction restoring me to service, along with an injunction restoring Cathy Harris to the Merit Systems Protection Board (MSPB).

In April, I returned to the NLRB again when the D.C. Circuit lifted its stay. But on May 22, the U.S. Supreme Court stayed the district court’s injunctions for the duration of the litigation. On September 22, the Supreme Court decided to hear the Administration’s appeal in Trump v. Slaughter. On December 8, the Court heard oral argument in Slaughter and considered whether to overrule Humphrey’s Executor v. United States, a 90-year-old Supreme Court precedent holding that the U.S. Congress is constitutionally authorized to protect appointees to multimember agencies—like the NLRB—from removal except for cause.

The loss of statutory removal protections for members of the NLRB would seriously compromise the integrity of the structure Congress designed for the purpose of regulating labor relations.

From the beginning, the NLRA has protected members of the NLRB from removal except for cause. Congress enacted the NLRA less than six weeks after the Supreme Court decided Humphrey’s Executor v. United States—which upheld removal protections for members of the Federal Trade Commission against constitutional challenge—and the NLRA’s legislative history shows that its drafters intended to mirror the removal protections the Supreme Court upheld in Humphrey’s Executor.

Because the NLRB functions as a quasi-judicial agency performing administrative adjudication, removal protections have historically empowered NLRB members to issue decisions based on the law, their expertise, and the record evidence rather than the fear of politically motivated removal.

Scholars have argued that the loss of removal protections, coupled with executive orders that would expand the President’s day-to-day review of agency operations, risk undermining independent agencies’ missions and undermining the interests of the public they serve. In the case of the NLRB, one author predicts that these changes will have a “potential chilling effect on the responsible and impartial enforcement” of the NLRA. Another author makes the more dramatic claim that the loss of removal protections will make the NLRA “a dead letter.”

My removal has already caused significant instability and uncertainty in the field of labor relations. For nearly a year following my removal, the NLRB lacked the requisite quorum, or minimum number of members, to issue decisions at all—with the exception of the 18 days when I was returned to service last spring. For over four months, the NLRB had only one member.

Because of the breadth of federal labor law preemption of state law governing labor relations, parties awaiting NLRB decisions certifying union elections and ordering remedies in unfair labor practice cases had no other recourse.

The difficulties caused by the NLRB’s prolonged lack of quorum prompted several states, including New York and California, to enact legislation to expand the authority of state labor boards to encompass the regulation of private-sector labor relations and union activity. Although federal district courts have enjoined the New York and California laws on preemption grounds, there may be further efforts to defend these state law interventions.

The NLRB also faced a separate constitutional challenge to its structure last year in a case brought by SpaceX. In August 2025, the U.S. Court of Appeals for the Fifth Circuit held that the statutory removal protections that apply to the NLRB’s members and the administrative law judges who preside over NLRB hearings are unconstitutional and enjoined a pending agency proceeding against SpaceX. The Fifth Circuit’s decision threatens the NLRB’s ability to enforce the NLRA on behalf of employees at companies that do business within the Fifth Circuit, as most employers with a national footprint do.

Despite the current legal uncertainty, I am encouraged to see so many workers continuing to exercise their rights to engage in conduct protected by the NLRA. For the past five years, more than two-thirds of Americans have expressed their approval of labor unions, and many nonunion workers have taken actions protected by the NLRA such as discussing their pay or raising workplace health and safety concerns. Although the NLRB’s 90th anniversary celebrations were at times overshadowed by controversy and litigation, the rights the agency protects are as vital today as when the NLRA was enacted.