National Labor Relations Board Back to Quorum Strength as Member Wilcox Is Reinstated

In an emphatic decision, Federal Court Judge Beryl Howell of the District of Columbia District ordered President Trump to reinstate NLRB Member Gwynne A. Wilcox to her Board seat. The President fired Wilcox, asserting unitary power over employees in the executive branch. Rejecting this broad construction of executive authority, Judge Howell concluded that Congress meant for some federal employees to be beyond the President’s reach except in limited circumstances.

The NLRB is constituted as a five-member quasi-judicial body, not executive in nature, at least not in theory, while the General Counsel of the Board is indisputably an executive function. The National Labor Relations Act states that the President may remove a Board member only “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” While acknowledging that independent agencies could become “agents of corrupt factions or private interest groups instead of the voting public,” and that empowering a President with absolute control to “clean house” promotes the campaign promises sanctioned by the electorate, Judge Howell decided that the President does not have the authority to terminate members of the NLRB at will.

The statutory limitations swayed the judge, as did the Supreme Court’s 1935 decision in Humphrey’s Executor, where the Court upheld similar limits on the president’s ability to fire a Federal Trade Commission Official. In sum, Judge Howell ordered Wilcox’s reinstatement, giving the Board the quorum it lacked.

This decision has implications for the President’s recent Executive Order seeking to vest all lawmaking power of Independent Administrative Agencies like the NLRB in the President’s office. Given the stakes here, the court’s decision is certainly not the final word, as President Trump’s team is expected to appeal, perhaps all the way to the Supreme Court, where they will argue that Humphrey’s Executor is distinguishable and that Board members do exercise executive authority and should therefore be in line with Presidential policies.

Should you have any questions, please contact Partners Edward J. Bonett, Jr., Esq. at 908.546.6991 or via email here, Patrick W. McGovern, Esq. at 973.535.7129 or via email here, or any Partner in our firm’s Labor Law Practice Group.