NLRB Again Without A Quorum
Topics: Legal Information, Union-Management Relations
Approximately three weeks ago, we reported that Judge Berly A. Howell, granted fired NLRB Board Member Gwynne A.Wilcox’s motion for summary judgment and reinstated her as a Board member. This decision restored the NLRB’s three member quorum and allowed it to again begin ruling on cases, and issuing injunctions and decision.
Last Friday, a divided United States Court of Appeals for the DC Circuit, granted the federal government’s request for a stay of Judge Howell’s reinstatement order. Thus, the NLRB is again left with only two members, David M. Prouty and Marvin E. Kaplan. As a result, the NLRB is also again without a quorum, which under the National Labor Relations Act requires at least three members. Some functions of the NLRB will continue without a quorum, but many including the issuance of decisions are again curtailed, consistent with the Board’s February 1, 2025 Release on Authority for Continued Operations.
The DC Circuit’s decision granting the stay on the reinstatement of Member Wilcox was split on partisan lines, with Judge Justin Walker, a Trump appointee and Judge Karen Henderson, an appointee of Judge George H.W. Bush, both ruling in favor of the Trump administration and Judge Patrica Millett, an Obama appointee, dissenting. At this point, Wilcox can seek en banc review of the stay order from the DC Circuit, or she could attempt to seek Supreme Court review of the stay. The merits of the case are not scheduled for oral argument before the yet to be named three Judge DC Panel until May 16.
Ultimately, it is pretty clear that this entire issue will ultimately be determined by the Supreme Court. This matter and other matters related to Executive Branch’s removal power all hinge on the viability of the 90 year old SCOTUS decision in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), which unanimously held that Franklin Roosevelt did not have the unfettered power to terminate William Humphrey as a member of the Federal Trade Commission and could only do so consistent with the Federal Trade Commission Act’s statutory limitations for removal enacted by Congress. The Trump administration is hoping to have the current SCOTUS overturn that decision and grant Trump with unfettered power to remove executive agency members at his discretion.
We will continue to keep you updated on key National Labor Relations Board developments.
