As of This Morning, Wilcox Is Back and the NLRB Has a Quorum Again – At Least for Now

Topics: Court Decisions, Union-Management Relations

NLRB member Gwynne A. Wilcox’s status with the National Labor Relations Board (“NLRB” or “Board”) moves back and forth faster than a table tennis ball at an Olympic match.

On January 7, President Trump fired Wilcox from the NLRB, claiming he did not need to show neglect of duty or malfeasance in office to remove her, despite the language of the National Labor Relations Act indicating such. Trump claimed that because the NLRB is an Executive Agency, the Constitution allows him to remove Wilcox at his pleasure. This termination left only two active NLRB Board members and stopped the NLRB in its tracks as it takes three members of the NLRB to constitute a quorum.

Wilcox subsequently filed a lawsuit in federal court in Washington, DC. Shortly after filing the lawsuit, her attorneys filed a motion for summary judgment seeking an order reinstating her. Then, things got even more interesting, as her status as a Board member has ping ponged back and forth the last month in an unprecedented way.

On March 6, we reported that Judge Beryl A. Howell of the Federal District Court – District of Columbia granted Wilcox’s summary judgment motion and ordered her reinstated. Following that order, Wilcox returned to work and the NLRB again has a three member quorum. It began issuing decisions. The Trump Administration immediately appealed Judge Howell’s summary judgment order to the DC Circuit.

Last Monday, we reported that a divided three judge panel for the Court of Appeals for the DC Circuit granted the Trump Administration’s request for an injunction staying Judge Howell’s reinstatement order. Wilcox stopped working as required by that order. The NLRB was without a quorum again.

Last week, Wilcox sought en banc review, a process by which the entire Court of Appeals (eleven judges) reviews the issue, instead of just a three judge panel. The request for en banc review was granted.

Early this morning, the DC Circuit issued its en banc decision relying principally on Humphrey’s Executor v. United States, 357 U.S. 359 (1958), and indicating that it was bound by that precedent and other Court of Appeals decisions reaching a similar conclusion, the majority found that Congress can limit the President’s removal authority and ordered that the prior three judge panel’s order staying Judge Howell’s reinstatement order be vacated. This allows Wilcox to return to work and gives the NLRB a quorum again. We expect that Wilcox will immediately return to work and the NLRB will begin operating and issuing decisions this week.

Interestingly, illustrating how politics has such a strong influence on constitutional interpretation, the en banc decision was decided on party lines, with the seven judge majority all being made up of judges who were appointed by Democratic Presidents and the four judges who dissented all being appointed by Republican Presidents.

Where Do Things Go From Here?

The decisions by the Court of Appeals over the last ten days only relate to whether temporary injunctive relief on Judge Howell’s order is appropriate. The actual decision on the merits of Judge Howell’s summary judgment ruling by the DC Circuit remains to be determined. The parties have briefed the issue and the oral argument is now scheduled for May 16. That argument and the decision on the merits following it will be decided by a three judge panel.

However, that is still not likely to be the final result. Once the DC Circuit issues its decision on the merits, which can be expected in May or June, it is extremely likely that Supreme Court review of this matter, along with parallel proceedings being litigated related to Trump’s termination of Cathy Harris, a Board Member of the Merit Systems Protection Board, will be sought by whoever loses the Court of Appeals decision.

So at this time, and likely for at least another six weeks or more, until the Court of Appeals issues its decision on the merits, Wilcox is back on the NLRB and the Board again has a quorum of three members, with two of those members being considered pro-union (Pouty and Wilcox).

We will continue to keep you updated as this saga continues and proceedings before the NLRB remain unclear at best.