By Robert G. Brody and Fintan S. Lalor
Fired, reinstated, fired again, reinstated again, and now fired once more – talk about a revolving door. President Trump’s unprecedented firing of a Democratic Member of the National Labor Relations Board (the “Board” or “NLRB”), Gwynne Wilcox, (discussed in greater detail here), left the Board without a quorum and without the ability to hear cases or issue decisions. The fight has been raging ever since.
Ms. Wilcox filed suit two weeks after her discharge claiming she was unlawfully discharged as it was not based on “neglect of duty or malfeasance.” Subsequently, the United States District Court for the District of Columbia ordered the reinstatement of Ms. Wilcox to the Board. President Trump appealed that decision to the D.C. Circuit Court of Appeals and asked the Court to stay the District Court’s Order reinstating Ms. Wilcox. A three-judge panel agreed. Shortly thereafter, the full D.C. Circuit vacated the three-judge panel’s Stay, and once again reinstated Ms. Wilcox. Now, the United States Supreme Court has issued a Stay on the D.C. Circuit’s decision and ordered Ms. Wilcox’s termination to remain in place while the litigation continues.
What now?
With Ms. Wilcox terminated once again, the NLRB has lost its quorum and therefore cannot hear cases and issue decisions. Consequently, uncertainty looms over businesses, unions, and employees that are affected by the NLRB.
The D.C. Circuit Court is scheduled to make their final decision on the merits of the case next month, but the issue seems destined for the Supreme Court. Ultimately, whether the President can treat federal agency heads like political appointees and fire them at-will is the question. A Supreme Court decision would have sweeping implications for how our government operates. If federal agency heads can be fired at will, the balance of power among the Executive, Legislative and Judicial branches will dramatically shift in favor of the Executive Branch. We will keep you informed.
Brody and Associates regularly advises its clients on all labor management issues, including collective bargaining strategies, and provides union-free training and counsel. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
