The Board has a quorum again . . . for now.
In one of his first acts after taking office, President Trump fired Gwynne Wilcox, a Democratic member of the National Labor Relations Board and former Chairman.
I wrote about the Wilcox termination here and questioned whether it was valid.
Well, according to Judge Beryl Howell of the District of Columbia (an Obama appointee), it isn't. Ms. Wilcox sued the Trump Administration after her termination and moved for summary judgment. In a decision issued earlier today, Judge Howell granted Ms. Wilcox's motion and ordered that she continues* to be a Member of the Board.
*This is not a typo. Judge Howell is saying that Ms. Wilcox never stopped being a Member of the NLRB because her termination was not valid.
The judge also denied a motion for summary judgment filed by the Administration and enjoined the Administration from terminating Ms. Wilcox or interfering in the performance of her duties in any way.
The problem for the Administration is that the National Labor Relations Act says that the President has the authority to remove members of the Board “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”
Ms. Wilcox has not been accused of “neglect of duty or malfeasance in office.” Also, she was not provided with notice or a hearing.
I expect the Administration to appeal Judge Howell's decision to the U.S. Court of Appeals for the District of Columbia Circuit and then for whichever party loses there to seek review by the U.S. Supreme Court.
For now, Judge Howell's decision restores a quorum and a Democratic majority to the NLRB. The other members are Chairman Marvin Kaplan (R) and Member David Prouty (D). Ms. Wilcox's term expires in 2028. Mr. Prouty's term expires in 2026.
Our labor law guru David Phippen will follow up with a more in-depth analysis of Judge Howell's decision and the Administration's chances of success on an appeal.
