National Labor Relations Board Back to Quorum Strength as Member Wilcox is Reinstated

National Labor Relations Board Back to Quorum Strength as Member Wilcox is Reinstated

Bayan Biazar, Associate

             In an emphatic decision, Judge Beryl Howell of the U.S. District Court for the District of Columbia ordered President Trump to reinstate National Labor Relations Board (“NLRB” or the “Board”) Member Gwynne A. Wilcox to her Board seat.[1] The President fired Wilcox, asserting unitary power over employees in the executive branch. Rejecting this broad construction of executive authority, Judge Howell concluded that Congress meant for some federal employees to be beyond the President’s reach except in limited circumstances.

Wilcox v. Trump – Judge Howell’s Decision

           In a decision that did not come as a shock to many, President Trump, on January 27, 2025, fired Member Wilcox from the Board prior to the end of her five-year term. The Trump Administration claimed that the NLRA’s protections on the removal of administrative officials were unconstitutional under Article II, claiming that President Trump cannot and should not be prohibited from the hiring and firing of administrative officials.

             Wilcox’s counsel directed the Court to Section (3)(a) of the National Labor Relations Act (NLRA) which states that, “Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”  Judge Howell reinstated Wilcox and stated, “in the ninety years since the NLRB’s founding, the President has never removed a member of the Board.” She went on to state, “an American president is not a king – not even an ‘elected’ one – and his power to remove federal officers and honest civil servants like plaintiff is not absolute.”

            In reaching this decision, Judge Howell relied heavily on the on the Supreme Court’s decision in Humphrey’s Executor v. United States.[2] The Humphrey decision established that the power to limit the President’s ability to remove officials from independent regulatory agencies was a power vested in Congress. President Trump’s arguments that the NLRB’s protections were unconstitutional are in direct contradiction to the Supreme Court’s precedent in Humphrey and over a “century of practice.”

Restoration of the Board’s Quorum and the Significance of the Wilcox Decision.

         With Judge Howell’s decision, and the reinstatement of Member Wilcox, a quorum has been reestablished within the National Labor and Relations Board (NLRB). A quorum of at least three board members is required to handle the issuance of future NLRB rules, the appeal of Administrative Law Judge (ALJ) labor-related decisions, and governance issues surrounding contested NLRB elections. With a quorum being restored (at least for now), some measure of continuity has been restored to the NLRB, which may now continue its operations in a routine manner that is predictable for both employers and employees alike. Nonetheless, Judge Howell’s decision and opinion represents a sharp rebuke of President Trump’s aggressive attempts to expand the scope of the Executive Branch’s power.

Employer Considerations

              Judge Howell’s decision has significant implications on the limitations of the power of the Executive Branch and has already elicited an appeal, which appears primed for an eventual review by the Supreme Court. Should the Wilcox decision find its way to the Supreme Court, the breadth and scope of the President’s power (or lack thereof) to make unfettered employment decisions concerning members of independent federal agencies may hang in the balance. Nonetheless, given the Trump Administration’s open hostility towards the Board’s and the prior administration’s pro-union positions, employers (both unionized and non-unionized) should continue to monitor developments in both the makeup of the Board and its decisions. Campbell Litigation will continue to stay abreast of rapidly-changing developments in federal labor law and is available to assist employers with the same.

[1]Wilcox v. Trump, --- F. Supp. 3d ----, 2025 WL 720914 (D.D.C. Mar. 6, 2025).

[2] Humphrey’s Executor v. United States, 295 U.S. 602 (1935).