NLRB Resumes Issuing Decisions After Return of Member Gwynne Wilcox

If the Supreme Court sides with Trump, these decisions will end up invalidated.

As detailed in my Timeline of Notable NLRB Events During Trump's Second Term, President Trump fired Board Member Gwynne Wilcox on January 28. On March 6, the DC District Court ruled that the termination violated the NLRA’s requirement that Board members not be fired for any reason other than neglect of duty or malfeasance and reinstated Wilcox to her former position. Trump’s letter firing Wilcox indicated that he intends to make a constitutional challenge to the NLRA’s removal protections and thus will likely appeal the decision to the D.C. Circuit and then the Supreme Court.

When Wilcox was absent from the Board, it lacked the necessary three-member quorum to make decisions and thus issued no decisions between January 28 and March 10. Wilcox returned to work on March 10 and the NLRB began issuing decisions again on March 11. See Wells Fargo Bank, N.A., 18-RC-349911 (March 11, 2025), Amazon.com Services, LLC, 19-CA-323984 (March 11, 2025), Power Up Electrical Contractors, LLC, 14-RC-318552 (March 11, 2025).

These new decisions all contain the following footnote indicating that the legality of Wilcox’s role is currently being contested in the courts:

Chairman Kaplan notes that, on January 27, 2025, President Trump removed Member Wilcox from her position. On March 6, 2025, the United States District Court for the District of Columbia held that Member Wilcox’s removal violated Section 3(a) of the Act, declared her removal “null and void,” and enjoined Chairman Kaplan from, inter alia, “in any way treating plaintiff as having been removed from office.” Wilcox v. Trump, Case 1:25-cv-00334-BAH (Mar. 6, 2025) (dkt #34). On March 7, 2025, the Department of Justice appealed the district court’s order to the United States Court of Appeals for the D.C. Circuit and, thereafter, filed a request for an immediate stay. See Emergency Motion for Stay Pending Appeal, Wilcox v. Trump, No. 25-5057 (D.C. Cir. filed Mar. 10, 2025). That request is pending as of the issuance of this decision.

If the Supreme Court ultimately rules that the NLRA’s removal protections are unconstitutional and that Trump had the authority to remove Wilcox, then all NLRB decisions involving Wilcox issued after her reinstatement would be rendered invalid. This is what happened to the Board decisions issued from January 1, 2008, to March 27, 2010, following the Supreme Court’s New Process Steel decision, and from January 9, 2012, to July 7, 2013, following the Noel Canning decision.

Although the Board can now issue decisions again with a quorum, those decisions remain subject to appeal in circuit courts. An employer intent on avoiding compliance with a Board order could appeal, arguing that the order is illegal because Wilcox is not a valid Board member. While most circuit courts—outside of the Fifth Circuit—are likely to reject that argument and enforce the order, employers could then petition the Supreme Court. This would allow them to delay enforcement until the Supreme Court rules on the constitutionality of the NLRA’s removal protections for Board members and, by extension, Wilcox’s status as a valid Board member.

So, even with Wilcox’s reinstatement and the Board technically being back in operation, things are not normal at the NLRB and will not be normal until Trump’s legal challenge is resolved by Supreme Court.