Wilcox Fired? Not So Fast

Topics: Legal Information, Union-Management Relations

About a month ago, President Trump terminated the employment of NLRB Board Member Gwynne Wilcox. This left only two active Board members and stopped the NLRB in its tracks as it takes three members for the NLRB to have a quorum and issue decisions and make rulings.

The law is unclear whether the President has the right to summarily dismiss an NLRB Board Member. Wilcox filed a lawsuit with the District of Columbia District Court in Washington DC to fight the termination decision shortly after it was made, claiming it was a clear violation of the National Labor Relations Act.

Earlier today, Judge Berly A. Howell, who was appointed to the bench by President Obama, and was assigned the Wilcox case, granted NLRB Board Member Gwynne Wilcox’ motion for summary judgment and declared that “the termination of plaintiff Gwynne A. Wilcox was unlawful, in violation of the National Labor Relations Act and therefor null and void.” Judge Howell further declared that “Wilcox remains a member of the National Labor Relations Board” may only be removed “upon notice and hearing for neglect of duty or malfeasance in office, but for no other cause” in accordance with the National Labor Relations Act.

Wilcox’ returning to the NLRB restore the board’s three-member quorum and allow it to begin ruling on cases, and issuing injunctions and decisions. President Trump is expected to immediately seek to appeal this decision to the United States Court of Appeals for the District of Columbia and will likely seek an injunction prohibiting enforcement of Howell’s order during the pendency of the appeal. Ultimately, this case, along with other cases dealing with summarily dismissed government officials, will likely head to the United States Supreme Court for examination under that Court’s decision in Humphrey’s Executor from 1935.

Stay tuned!