NLRB Member Wilcox Reinstated, Fired Again in Same Week

The revolving door saga on whether President Trump has the authority to fire an National Labor Relations Board (NLRB) member continued this week, placing Gwynne Wilcox back in a terminated status while the underlying issues are litigated.

What happened: Last week, a D.C. Circuit panel removed an earlier district court stay, allowing President Trump’s termination of (NLRB) Member Wilcox to go forward. 

• This week, the full D.C. Circuit reversed the panel and reinstated Ms. Wilcox to the Board. 

• Two days later, Chief Justice Roberts stayed the D.C. Circuit’s decision in an emergency appeal by the administration, putting Wilcox back on the sidelines. 

The bottom line: The NLRB once again loses its quorum (after regaining it for a whole two days) which limits its ability to perform certain major functions.

• An eventual full Supreme Court decision on the legality of her termination could put several other agency heads at the whim of the President in the future, reducing their independence and turbocharging problematic partisan policy oscillation. 

The decisions: In restoring Member Wilcox, the en banc D.C. Circuit Court opinion cited existing Supreme Court precedent in Humphrey’s Executor and Wiener v. United States which upheld removal protections of agency officials similar to those provided for NLRB Members in the text of the National Labor Relations Act. The Supreme Court’s order staying that decision provided no additional rationale.

• A final resolution of the Wilcox termination saga is likely several months away and will have implications for similarly situated agency heads.

• The Trump administration is seeking expedited review, which could accelerate this timeline.

Larger implications: If the Supreme Court upholds the legality of Wilcox’s termination, leaders at agencies such as the Securities and Exchange Commission (SEC) or the Equal Employment Opportunity Commission (EEOC) would be perpetually at risk of Presidential removal. This would both reduce the independence of such agencies and drastically increase the partisan policy oscillation that already plagues federal regulations.

Employer considerations: Even without a quorum, unfair labor practice case processing and the holding of union elections can continue.

• The legal ping pong match is unlikely to end anytime soon. Accordingly, employers are best served by continuing to operate within current law and in their best strategic interest, despite the uncertainty currently clouding the NLRB.