Federal District Court Reverses Firing NLRB Member Wilcox – NLRB Returns To Statutory Quor
The court ordered that the Board’s chair restore her access to her Board and let her finish her five-year tenure. The Trump administration appealed immediately and is now seeking an immediate stay of the decision from a federal appellate court.010010 Thus, for now, it appears that the Board again has a statutory quorum under the National Labor Relations Act (“NLRA” or the “Act”) and can resume operating as normal.
What Is in Dispute?[1]Under the NLRA, members of the Board serve fixed five-year terms after being duly nominated and Senate approved. The NLRA allows for removal before the end of their term only if they have “malfeasance”, “n The “for cause” protection has become increasingly controversial. Some scholars have argued that removal protections interfere with the president’s ability to The Board was effectively frozen and not operating during Ms. Wilcox’s absence because it lacked the three-member The Board was effectively frozen because it lacked a quorum of three members. Ms. Wilcox had held the Shortly thereafter, the Deputy Director of the White House Presidential Personnel Office sent Ms. Wilcox an email at 11:00 p.m. terminating her from her Board position, without “notice and hearing” and without citation to any statutory basis for removal (e.g., “neglect of duty” or “malfeasance”).[2] The email also stated the statutory limitations on removal power were “unconstitutional” because they are “inconsistent with the vesting of the executive Power in the President. Mr. Kaplan, the current Board Chair, instructed his direct reports to initiate Ms. Wilcox’s termination, cut off The President’s decision to terminate Ms. Wilcox means the Board is unable to function because only 2 members remain and 3 members are required to form a quorum and exercise the Board’s powers.
The Constitution comes into play because President Trump conceded that the email termination violated the statutory requirements for removing a Board Member and instead contends that the President’s “removal power is fundamentally ‘unrestricted.'”
The Constitution enunciates both the structure and vested powers for each branch of government: Article I vests all legislative powers in Congress (the Senate and House of Representative); Article II vests the executive power in the President; and Article III vests the judicial power in one Supreme Court and other inferior Courts established by Congress. The refusal of President Trump to obey a statute by Congress pits the executive (Article I) against the legislative (Arti Article III of the Constitution gives the courts the power to interpret past practice and judicial precedent in order to resolve conflict. The President’s role, as wielder of the executive power, is “to be a conscientious custodian of the law, albeit an energetic one, to take care of effectuating his enumerated duties, including the laws enacted by the Congress and as interpreted by the Judiciary.”
What Did the District Court Hold?[3]Because the Constitution does not contain any removal provisions for multi-member boards or commissions, the District Court’s analysis was distilled down to one 1935 U.S. Supreme Court case, Humphrey’s Executor v. U.S., 295 U.S. 602. Humphrey’s Executor addressed removal of commissioners of the Federal Trade Commission (the “FTC”) and in doing so discussed and upheld past practice since 1887 that Congress could establish independent, multimember commissions whose members are appointed by the President but can be removed only for cause.[4]
Two months after the Humphrey’s Executor decision, Congress enacted the National Labor Relations Act and created a two part leadership structure for the agency similar to the FTC: a five member Board was designed to adjudicate cases impartially by staggering the members’ five-year terms and a General Counsel who determines which cases to prosecute, provides guidance on legal interpretation, and has a four-year term.[5]To avoid the application of Humphrey’s Executor as binding precedent, President Trump contends: the FTC in 1935 did not exercise “executive power” and asserts that the Board does; the NLRB removal grounds are stricter because unlike the FTC they include efficiency; and Humphrey’s Executor was wrongly decided or repudiated (relying on preceding cases and interpretation of later opinions in different removal contexts).
However, the district court agreed with Board Member Wilcox. The district court ruled that Humphrey’s Executor still applies to the NLRB. It still allows Congress the ability to shield the heads of multi-member agencies. The district court applied this description to the Board, and found that, like the FTC, in Humphrey’s Executor It investigates unfair work practices and adjudicates these through an administrative procedure. The process is concluded by a three member panel that acts as a quasi-court. The court ruled that this structure was identical to the FTC structure. The district court ruled that Humphrey’s Executor was still in control and that Ms. Wilcox was valid The court instead ordered that the Board’s chair Kaplan not prevent her from doing the job. This means Kaplan could not deny The district court ordered Ms. Wilcox to serve her original term. To avoid a debate about whether a court has the The district court rejected the stay request.[6]President Trump’s stay request is now in the hands of the U.S. Court of Appeals for the District of Columbia. The same court granted the government’s request for a stay to prevent Special Counsel Hampton Dellinger, who was terminated from his position After the stay request was granted, Mr. Dellinger dropped his appeal.[7]What Is Next?
For now, the Board appears to have a quorum since Ms. Wilcox has resumed her Board duties, and the Board has begun to issue decisions again.[8]However, that situation may not last. The appeal and request for a delay will be sent to a federal court in Washington, and then to the U.S. Supreme We will continue to monitor the future developments and provide updates on our blog. Employers with questions about how the decision affects them should consult experienced labor counsel.[9]
FOOTNOTES
Wilcox v. Trump, Case 1:25-cv-00334-BAH (Mar. dkt #34).[10] See Emergency Motion for Stay pending Appeal, Wilcox V. Trump, No 25-5057 (D.C. Cir. Opinion, p. 8.[11]
See New Process Steel, L.P. v. NLRB, 5 Opinion, pp. 8-9.[12]
Opinion, p. 9.
Opinion, p. 8.
Opinion, pp. 5, 8, 15; 29 U.S.C. SS 153(a).
Opinion, p. 4 (“U.S. Const. art. II, SS 3, “
e shall ensure that the laws are faithfully implemented. . . .”)).
Opinion, pp. 10-12.
Opinion, pp. See also 29 U.S.C. SSSS 151-169.
Opinion, pp. 15-28.
