The National Labor Relations Board (NLRB) lost its three-person quorum once again after the Supreme Court stayed board member Gwynne Wilcox’s reinstatement on April 9.
Wilcox, who was nominated to serve a second term on the board by President Joe Biden last year, lost her job when Donald Trump took office and fired her in February. Wilcox sued the president, arguing her removal was unconstitutional, and has since been reinstated twice by a federal district court in Washington, D.C., rulings which the D.C. Circuit Court of Appeals also upheld.
The latest turn in the legal back-and-forth over Wilcox’s removal occurred on Apr.il 9, when the nation’s highest court granted a motion for a stay of the first district court decision reinstating her.
It’s likely that the Supreme Court will decide the fate of Wilcox’s job. In the meantime, the labor board is unable to issue decisions, and won’t be able to roll back many of the Biden-era policies the acting general counsel has targeted.
An unprecedented move. Wilcox is the first board member to be fired since the NLRB was created 90 years ago. NLRB board members are generally protected from being fired at will under a Supreme Court ruling that states the president may only remove such independent agency members if they are guilty of “inefficiency, neglect of duty, or malfeasance in office.”
The federal judge who ordered Wilcox reinstated on Mar. 6 acknowledged that the Supreme Court may overturn her decision, but nevertheless ruled that the firing of Wilcox was illegal. Wilcox only returned to work temporarily from Mar. 10 to Mar. 28, and has since been reinstated and subsequently removed—again—as the courts considered the Trump administration’s request to stay the original order that gave Wilcox her job back.
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Chief Justice John Roberts asked the district court to respond to the Trump administration’s request to stay its order reinstating Wilcox by Apr. 15.
What this means for HR. The legal saga over Wilcox’s job is enough to make any compliance professional’s head spin. For the moment, though, not much is changing when it comes to NLRB rules and regulations.
Without a three-person quorum, the NLRB can’t issue decisions, which means that many of the worker-friendly policies taken when President Biden was in office remain in place. Acting NLRB General Counsel William B. Cowen rescinded a number of memoranda released by his predecessor when he first stepped into the role, but such memos are nonbinding.
Cowen indicated a Republican-controlled board will revisit an NLRB decision concerning severance agreements, as well as a 2023 decision in Cemex Construction Materials Pacific, LLC that paved the way for workers to organize without formal union elections, among others. During Trump’s first term, the NLRB took positions viewed by the labor community as employer-friendly—including a series of decisions that gave management the upper hand in collective bargaining, for example.
Attorney and commentator Matt Bruenig, who publishes the newsletter NLRB Edge, wrote earlier this year that one way the NLRB’s lack of a quorum could aid employers is by slowing down the resolution of cases involving union organizing. If an administrative law judge rules that an employer has refused to bargain with employees, for example, an employer can appeal that decision, “effectively stalling the representation process indefinitely.”