The Labor Law Ping-Pong Continues: Federal Appeals Court Allows NLRB Member Wilcox to Return to Work

The U.S. Court of Appeals for the D.C. Circuit has ruled that National Labor Relations Board Member Gwynne Wilcox will return to work while she challenges her removal. This latest decision reverses a prior decision by a three-judge panel on the same court, which had kept Wilcox out of her job while her case went forward. This latest decision puts the Board back to three active members, which allows it to resume normal operations with a reconstituted quorum. But the decision is unlikely to be the last word, as the case will inevitably be presented to the U.S. Supreme Court.

The case involves a dispute over the president’s power to fire Board members. Under the National Labor Relations Act, the president can fire a Board member only for “neglect of duty” or “malfeasance.” He must also give the member notice and a hearing. When President Trump took office, he terminated Wilcox without notice or a hearing, arguing that the Act’s removal rules were unenforceable because they improperly limited his ability to manage the Board’s members. 

Wilcox sued to challenge her removal. The U.S. District Court for the District of Columbia initially sided with her and ordered that she be allowed to go back to work. The administration then appealed to the D.C. Circuit. A three-judge panel then paused the district court’s order, keeping Wilcox out of her job while the case proceeded. Wilcox then asked the full D.C. Circuit to review that decision. Now, the full D.C. Circuit Court has again sided with her and vacated the panel decision. That means she can (again) return to work.

In a short opinion, the full circuit court explained that the result was controlled by Supreme Court precedent—Humphrey’s Executor. In the 1930s (and again in the 1950s), the Supreme Court said that Congress could protect the heads of certain multi-member independent agencies from removal. The full D.C. Circuit concluded in its decision to return Wilcox to the Board that those decisions apply to the Board and control the outcome here. Three judges dissented from that conclusion and wrote separate opinions. Two of the dissenters were members of the original three-judge panel, who wrote that the Supreme Court’s earlier decisions likely did not apply to the Board. They reasoned that those decisions applied only to agencies that exercised no “executive power,” but the Board did exercise that kind of power—given it is responsible for setting national labor policy. The third dissenting judge wrote that even if those older decisions did apply, the court could not order the president to reinstate an executive officer. At best, the court could require the government to pay damages (i.e., backpay).  

The D.C. Circuit is scheduled to hold oral arguments in the case in May. After arguments, the court will decide the case on the merits. In the meantime, the administration may look for emergency relief from the Supreme Court. The current takeaway for employers is that Wilcox is (once again) back to work. That means the Board is back to operating strength with a restored quorum. Employers with questions about how the change affects their matters should work with experienced counsel.