NLRB Back in Limbo After D.C. Circuit Restores Termination of Member Wilcox

A D.C. Circuit panel stayed a prior district court order that had reinstated NLRB Member Wilcox following her termination by President Trump.

• Member Wilcox is once again removed from her duties at the NLRB and the Board once again is without a quorum.
  
  
• The D.C. Circuit panel found that the government was likely to win on the merits that the President has the authority to fire NLRB Members, and therefore stayed the injunction reinstating Wilcox.

What it means: Without a quorum, the Board is unable to perform the majority of its major functions, including issuing decisions and engaging in other policymaking functions such as rulemaking.

• The Board will remain without a quorum for as long as it takes the Trump administration to advance nominations for the vacant Board seats through the Senate.
  
  
  • As of now, no nominations have yet been put forth.

What’s next: Member Wilcox will remain on the sidelines pending a decision on the merits, which could take several weeks or months.

• That decision itself is likely to be appealed to the Supreme Court, meaning a final decision on the legality of her termination could be several months away.
  
  
• As the D.C. Circuit itself determined here, it is more likely than not that a final court decision will side with the Trump administration.