The U.S. agency that enforces the labor rights of private-sector workers is abandoning its defense of a law barring the president from removing appointees at will, as President Donald Trump seeks to oust a Democratic member.
The National Labor Relations Board since last week has notified courts in at least six cases, including one involving the SpaceX company of Trump ally Elon Musk, that it was taking the position that protections from removal for board members and administrative judges violate the U.S. Constitution.
Several federal judges have upheld those protections in a series of lawsuits filed against the board since 2023. Last week a judge in Washington, D.C., said Trump could not fire Democratic NLRB member Gwynne Wilcox. The administration appealed that ruling.
The labor board is one of several federal agencies designed to be independent from the White House but which the Trump administration has said should be under the president’s direct control. The law creating the board says its five members appointed by the president can only be removed for “neglect of duty or malfeasance in office.”
Until last week, the board had defended that law as necessary to maintain the independence of members, who decide cases accusing businesses of violating workers’ rights to organize, join unions, and engage in collective bargaining over working conditions.
The labor board in the new court filings cited a February letter from acting U.S. Solicitor General Sarah Harris asserting that protections from removal for members of the NLRB and two other agencies with similar structures were invalid.
An NLRB spokesman declined to comment.
Patrick Semmens of the National Right to Work Foundation, which says “its mission is to eliminate coercive union power” and which represents several workers who have filed lawsuits against the NLRB, said the agency’s structure has allowed it to dictate labor policy while evading accountability. The workers represented by the group, including some Starbucks baristas, have filed complaints against their unions or are seeking to dissolve them.
“We are pleased that as a result of the President’s removal of Wilcox, this issue appears fast-tracked for an overdue review by the Supreme Court,” Semmens said in a statement.
The board’s decision not to defend the removal protections could have an impact on how courts analyze the legal issues. But the Supreme Court, which will have the final say, would likely appoint a lawyer to make the arguments that the agency has now abandoned, according to Lauren McFerran, who was chair of the NLRB during the Biden administration.
She said a ruling invalidating the removal protections would fundamentally change the way the board operates.
“It really taints the neutrality of the process if you’re worried about [finding] a violation against a donor to the president or something like that,” said McFerran. Her term on the board expired in December and the U.S. Senate rejected her nomination for a new term.
Trump fired Wilcox in January, when the board had two vacancies, leaving it without a quorum of three members to decide even routine cases until she sued and the judge reinstated her last week.
In the SpaceX case, a federal judge in Texas, where the rocket company is based, last year agreed with SpaceX that removal protections for board members and administrative judges are unlawful. The judge blocked the NLRB from pursuing an administrative case claiming that SpaceX forced employees to sign illegal severance agreements, which the company has denied.
Musk, the founder and CEO of SpaceX, is a top adviser to Trump and is spearheading an aggressive campaign to shrink the federal workforce and slash government spending.
(Reporting by Daniel Wiessner in Albany, New York; Editing by Paul Simao and Leslie Adler)
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