Terminated NLRB Member Gwynne Wilcox challenged her removal from the Board and President Donald Trump’s effort to reshape the NLRB’s membership in a lawsuit filed in the United States District Court for the District of Columbia. Judge Beryl Howell ruled in her favor on March 6, 2025, holding that Wilcox was entitled to carry out her term (ending in 2028). The Trump Administration filed its notice of appeal on March 7, 2025. The District Court rejected the Trump Administration’s request to stay its order returning Wilcox to the Board while the appeal is pending.
The termination of Member Wilcox (a Biden Administration appointee) left the Board without a quorum necessary to issue decisions. The District Court’s order returns the Board to a quorum, with two Democratic appointees and one Republican appointee. The reinstatement is not guaranteed to stand throughout the appeal process, however, as the D.C. Circuit will also have a chance to weigh in on the issue and order a stay. Last week, the D.C. Circuit temporarily stayed a reinstatement order in a case concerning the removal of the head of the Office of Special Counsel. It is unclear whether the D.C. Circuit would do the same in this case, but there is a possibility that the Board will soon return to a quorum-less state.
The uncertainty of the appeal likely creates a tension between the Board’s desire to start moving cases out of its backlogged docket and the concern that decisions it makes could be challenged later if the Trump Administration wins on appeal. The last time the Board faced a similar situation involved vacated decisions from the 2014 recess appointments of President Obama. While the Board was able to validate the vacated decisions once its members were properly installed, suggesting less risk of the Board’s efforts going to waste, the current situation is distinct given the Board’s current Democratic majority and the likely future Republican majority.
If the Trump Administration prevails on appeal, it could lay the foundation for a new custom of the incoming administrations cleaning house at the Board on the first day of the term, rather than waiting for Members’ terms to expire. The removal and appeal decisions also suggest the Trump Administration is more comfortable than its predecessors with breaking the norms of the Board to both reform the NLRB and implement their vision for national labor policy. This suggests that while the Board has returned to a quorum and is able to resume its business, labor professionals should look for potential changes to that status quo. This blog will continue to provide updates as the case evolves.
