Articles Discussing The National Labor Relations Board (NLRB).

National Labor Relations Board (NLRB) Member Gwynne A. Wilcox is out of a job, again, for the third time in less than four months.

By: Bouncing Back and Forth: Wilcox’s NLRB Status Tilts Once More

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.

By: As of This Morning, Wilcox Is Back and the NLRB Has a Quorum Again – At Least for Now

NLRB member Gwynne A. Wilcox’s status with the National Labor Relations Board (“NLRB” or “Board”) moves back and forth faster than a table tennis ball at an Olympic match.

On January 7, President Trump fired Wilcox from the NLRB, claiming he did not need to show neglect of duty or malfeasance in office to remove her, despite the language of the National Labor Relations Act indicating such. Trump claimed that because the NLRB is an Executive Agency, the Constitution allows him to remove Wilcox at his pleasure. This termination left only two active NLRB Board members and stopped the NLRB in its tracks as it takes three members of the NLRB to constitute a quorum.

Wilcox subsequently filed a lawsuit in federal court in Washington, DC. Shortly after filing the lawsuit, her attorneys filed a motion for summary judgment seeking an order reinstating her. Then, things got even more interesting, as her status as a Board member has ping ponged back and forth the last month in an unprecedented way.

On March 6, we reported that Judge Beryl A. Howell of the Federal District Court – District of Columbia granted Wilcox’s summary judgment motion and ordered her reinstated. Following that order, Wilcox returned to work and the NLRB again has a three member quorum. It began issuing decisions. The Trump Administration immediately appealed Judge Howell’s summary judgment order to the DC Circuit.

Last Monday, we reported that a divided three judge panel for the Court of Appeals for the DC Circuit granted the Trump Administration’s request for an injunction staying Judge Howell’s reinstatement order. Wilcox stopped working as required by that order. The NLRB was without a quorum again.

Last week, Wilcox sought en banc review, a process by which the entire Court of Appeals (eleven judges) reviews the issue, instead of just a three judge panel. The request for en banc review was granted.

Early this morning, the DC Circuit issued its en banc decision relying principally on Humphrey’s Executor v. United States, 357 U.S. 359 (1958), and indicating that it was bound by that precedent and other Court of Appeals decisions reaching a similar conclusion, the majority found that Congress can limit the President’s removal authority and ordered that the prior three judge panel’s order staying Judge Howell’s reinstatement order be vacated. This allows Wilcox to return to work and gives the NLRB a quorum again. We expect that Wilcox will immediately return to work and the NLRB will begin operating and issuing decisions this week.

Interestingly, illustrating how politics has such a strong influence on constitutional interpretation, the en banc decision was decided on party lines, with the seven judge majority all being made up of judges who were appointed by Democratic Presidents and the four judges who dissented all being appointed by Republican Presidents.

Where Do Things Go From Here?

The decisions by the Court of Appeals over the last ten days only relate to whether temporary injunctive relief on Judge Howell’s order is appropriate. The actual decision on the merits of Judge Howell’s summary judgment ruling by the DC Circuit remains to be determined. The parties have briefed the issue and the oral argument is now scheduled for May 16. That argument and the decision on the merits following it will be decided by a three judge panel.

However, that is still not likely to be the final result. Once the DC Circuit issues its decision on the merits, which can be expected in May or June, it is extremely likely that Supreme Court review of this matter, along with parallel proceedings being litigated related to Trump’s termination of Cathy Harris, a Board Member of the Merit Systems Protection Board, will be sought by whoever loses the Court of Appeals decision.

So at this time, and likely for at least another six weeks or more, until the Court of Appeals issues its decision on the merits, Wilcox is back on the NLRB and the Board again has a quorum of three members, with two of those members being considered pro-union (Pouty and Wilcox).

We will continue to keep you updated as this saga continues and proceedings before the NLRB remain unclear at best.

By: NLRB Again Without A Quorum

Approximately three weeks ago, we reported that Judge Berly A. Howell, granted fired NLRB Board Member Gwynne A.Wilcox’s motion for summary judgment and reinstated her as a Board member. This decision restored the NLRB’s three member quorum and allowed it to again begin ruling on cases, and issuing injunctions and decision.  

Last Friday, a divided United States Court of Appeals for the DC Circuit, granted the federal government’s request for a stay of Judge Howell’s reinstatement order. Thus, the NLRB is again left with only two members, David M. Prouty and Marvin E. Kaplan. As a result, the NLRB is also again without a quorum, which under the National Labor Relations Act requires at least three members. Some functions of the NLRB will continue without a quorum, but many including the issuance of decisions are again curtailed, consistent with the Board’s February 1, 2025 Release on Authority for Continued Operations.

The DC Circuit’s decision granting the stay on the reinstatement of Member Wilcox was split on partisan lines, with Judge Justin Walker, a Trump appointee and Judge Karen Henderson, an appointee of Judge George H.W. Bush, both ruling in favor of the Trump administration and Judge Patrica Millett, an Obama appointee, dissenting. At this point, Wilcox can seek en banc review of the stay order from the DC Circuit, or she could attempt to seek Supreme Court review of the stay. The merits of the case are not scheduled for oral argument before the yet to be named three Judge DC Panel until May 16.  

Ultimately, it is pretty clear that this entire issue will ultimately be determined by the Supreme Court. This matter and other matters related to Executive Branch’s removal power all hinge on the viability of the 90 year old SCOTUS decision in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), which unanimously held that Franklin Roosevelt did not have the unfettered power to terminate William Humphrey as a member of the Federal Trade Commission and could only do so consistent with the Federal Trade Commission Act’s statutory limitations for removal enacted by Congress. The Trump administration is hoping to have the current SCOTUS overturn that decision and grant Trump with unfettered power to remove executive agency members at his discretion.  

We will continue to keep you updated on key National Labor Relations Board developments.  

By: President Trump Nominates New NLRB General Counsel

According to the March 24 Congressional Record, President Trump nominated Morgan Lewis labor law attorney Crystal Carey as the new National Labor Relations Board General Counsel.    

Ms. Carey has been practicing for approximately fifteen and a half years. She spent time as an attorney with the Board from November 2009 through 2018, before joining Morgan Lewis. She previously practiced in Morgan Lewis’ Philadelphia office and moved to the New York office in 2022. She was promoted to Partner five months ago. 

The NLRB GC has significant power to shape labor law policy across the country as the chief prosecutor and overseer of the NLRB Division of Advice, among other roles.   

Existing Acting NLRB GC William Cowen will likely remain in the position until Ms. Carey’s nomination is confirmed. As we learn more about Ms. Carey and as the confirmation process moves forward, we will continue to keep you updated.  

On March 6, 2025, U.S. District Judge Beryl A. Howell from the U.S. District Court for the District of Columbia ordered that Gwynn Wilcox be reinstated to the National Labor Relations Board (NLRB) and complete her five-year term, which is set to expire on August 27, 2028.

Recently selected acting GC William Cowen’s Memo 25-05 rescinds dozens of his predecessor’s expansive and novel enforcement priorities.