Judge Orders NLRB Member Wilcox Reinstated Restoring Board’s Quorum

A D.C. federal judge ordered Democratic NLRB Member Gwynne Wilcox – unprecedentedly fired by President Trump – to be reinstated the Board, effective immediately.

Why it matters: Assuming Member Wilcox is able to resume her duties, the Board’s quorum is now restored, meaning it can once again conduct business as usual – and with a Democratic majority. Prior to Wilcox’s reinstatement, the Board was essentially unable to perform most of its major functions due to its lack of quorum.

“An American president is not a king:” District Judge Beryl Howell found that the text of the National Labor Relations Act clearly prohibits the President from terminating Board members without cause and cited Supreme Court precedent that upholds Congressional authority to limit the President’s removal power. 

What’s next: The Trump administration will likely immediately appeal the decision and likely request a stay of the reinstatement order. There are several potential legal outcomes, each with different implications and respective timelines:

• If a stay is granted, Member Wilcox’s reinstatement will be paused and the Board will once again be without a quorum and unable to perform most of its major functions until a decision on the merits of her termination is made. A stay could theoretically be granted within days.

• If a stay is not granted, Member Wilcox will remain on the Board and the Board will conduct business as usual until a decision on the merits of her termination is made.

• A decision on the merits – even with an expected request for an expedited appeal from the Trump administration – could take several weeks or months. Moreover, that decision is itself likely to be appealed to the Supreme Court, extending the timeline even further.

• If a final court decision determines that Member Wilcox’s termination was lawful, decisions Wilcox participates in between now and then could be retroactively invalidated.

Employer considerations: Employers should consider the Board, with its Democratic majority and Biden-era approach to labor law, is once again fully operational. One potential check on the Democratic majority will be newly appointed Acting General Counsel William Cowan, who has some authority to dictate which cases come before the Board.