Bouncing Back and Forth: Wilcox’s NLRB Status Tilts Once More | CDF Labor Law LLP

NLRB member Gwynne A. Wilcox’s status with the National Labor Relations Board (“NLRB” or “Board”) continues to move back and forth faster than a pinball on tilt. 

Only Monday morning, after a series of back and forth rulings that we chronicled here earlier this week, the Federal Court of Appeals for the DC Circuit issued its en banc decision holding that Congress can limit the President’s removal authority and ordering that the prior DC Circuit’s three judge panel’s order that stayed Judge Howell’s summary judgement order reinstating Member Wilcox to the Board be vacated. This allowed Wilcox to return to work and gave the NLRB its three-member quorum again. Wilcox immediately returned to work and the NLRB began issuing decisions.  

In February, the Trump Administration used a procedure rarely utilized to apply to Chief Judge Roberts: (1) have the Court take up the case immediately and (2) vacate the District Court Order, reinstating Wilcox to the Board. The application was over 250 pages. Roberts issued a preliminary order granting the application to vacate the original District Court order reinstating Wilcox to the Board pending further order of the Supreme Court and ordered Member Wilcox to file a response to the entire application by Tuesday.  

The NLRB is again without a quorum and Member Wilcox is again without a job. 

Where Do Things Go From Here?

The Supreme Court has yet to rule whether it will take up the entire case immediately or allow the proceedings in the DC Circuit to continue first. It appears quite likely that SCOTUS will rule on this termination, but it is not clear whether proceedings will proceed before the Court of Appeals first. In any case, things will likely remain status quo until at least next week when Member Wilcox files her response. 

With the NLRB being without a quorum, there will be a halt to NLRB decisions, and many of the activities of the Board will grind to a halt or move quite slowly.  

Much like a pinball ricocheting between bumpers, Member Wilcox’s status—and the NLRB’s ability to function—continues to bounce unpredictably from one decision to the next. For now, the ball is with the Supreme Court. We will continue watching and reporting on where it lands next.