The United States Supreme Court recently issued a decision granting President Trump’s request to Stay the reinstatement of National Labor Relations Board (the “Board” or “NLRB”) Member Gwynne Wilcox. Consequently, the Board remains without a quorum and is unable to hear cases or issue decisions. Although the decision is a temporary one, as the Stay will only remain in effect until the D.C. Circuit Court of Appeals decides whether President Trump’s unprecedented firing of Wilcox was lawful, many believe the Supreme Court’s ruling forecasts how they will eventually decide the case.
Ms. Wilcox’s Revolving Door Timeline
As previously reported, Ms. Wilcox filed suit two weeks after her discharge earlier this year, claiming she was unlawfully terminated by President Trump 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. President Trump appealed that decision to the D.C. Circuit Court of Appeals and asked the Court to Stay the District Court’s Order. 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. After that, the United States Supreme Court issued a temporary Stay on the D.C. Circuit’s decision and ordered Ms. Wilcox’s termination to remain in place while the litigation continues. Now, the Supreme Court has made their temporary Stay permanent, at least until the Circuit Court decides the issue on the merits. In their decision, the Supreme Court opined “that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” After the Circuit Court makes its final decision, it is very likely the issue will come back to the Supreme Court.
What now?
With Ms. Wilcox terminated, the NLRB lacks a quorum and cannot hear cases and issue decisions. Consequently, uncertainty continues to loom over businesses, unions, and employees that are affected by the NLRB’s decisions.
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. As always, we will continue to 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.
