Fired Labor Board Member’s Bid for Reinstatement Has Catch-22

Fired NLRB member Gwynne Wilcox’s legal bid to rejoin the board carries an unexpected risk for labor law enforcement, as her success could give a big boost to employers that have challenged the agency’s constitutionality.

That Catch-22 dynamic stems from the potential that a court order reinstating Wilcox would help companies demonstrate that National Labor Relations Board members’ removal protections had an actual impact on employers. The agency asserts that employers can’t win constitutional challenges to board members’ removal protections unless they show what’s known as causal harm.

“Wilcox’s reinstatement would cut against the agency’s argument that employers are unable ...