The Labor & Employment Law blog
On the 7th of April 2025, Gwynne Wilcox, a member of the National Labor Relations Board, was reinstated. Initially, President Trump had fired Wilcox in a brief email sent on January 27, 2025. He stated that he no longer believed in Wilcox’s ability to lead. The firing of Wilcox by Trump left the Board with a quorum of only three members. The U.S. Court of Appeals’ decision of April 7th is only the latest development in the saga. It is now ripe for Supreme Court review. In that case, it was held that Congress can protect the commissioners of the Federal Trade Commission against removal. This means that Congress can limit the President’s power to remove officers from certain independent agencies that have “quasilegislative” and “quasijudicial” functions. Judge Howell ruled that the NLRB performs quasi-judicial duties, as it investigates unfair labor practices, adjudicates these through an administrative process and then appeals to a higher court.
The Trump Administration appealed immediately the decision, and sought an immediate stop to Wilcox’s reinstatement. This had restored a quorum of three members at the NLRB. On March 28, 2025 a three judge panel of the D.C. The D.C. Circuit issued an en-battle decision reinstating Wilcox. This means that the NLRB is also back to a three member quorum. The D.C. Circuit en banc panel, like Judge Howell, relied primarily on Humphrey’s Executor to show that it was bound the Supreme Court precedent. What does it mean that there is now a quorum of three members at the NLRB? The NLRB doesn’t shut down if there is no quorum. This was the case when Wilcox’s reinstatement was stayed and the Board was without a quorum. Certain tasks are automatically delegated to the Board when it lacks a quorum. The regional offices of the NLRB continue to function as normal. However, appeals to the NLRB Board cannot be delegated and come to halt when the Board lacks a quorum.
Additionally, the April 7th decision reinstating Wilcox is not the final word. The Court of Appeals has only ruled on the injunction. They must still decide the merits of Judge Howell’s ruling. The Supreme Court is also likely to review this case. Wilcox has returned to work and there is a quorum on the Board. However, this could change in the next six week after the Court of Appeals makes its decision.
