NLRB To Move Quickly as Quorum Is Restored

The U.S. Senate on December 19, 2025, confirmed two nominees to give the National Labor Relations Board (NLRB) the minimum number needed to regain a quorum and thus to resolve cases.  The NLRB has been unable to issue decisions during Trump’s second term because his firing of member Gwynne Wilcox dropped the Board below the three-member minimum necessary for a quorum.  The Supreme Court has blocked a judge’s order to reinstate Wilcox as litigation over her termination proceeds.  The two new members join Democrat member David Prouty, who continues to serve on the Board.  The two new members of the Board will be Scott Mayer, who served as Boeing’s Chief Labor Counsel, and James Murphy, a former NLRB attorney.

The former NLRB Chair, Marvin Kaplan, has stated that he expects the new Board to start issuing opinions immediately, explaining that the Board’s staff has developed draft opinions on a number of cases that the new Board could potentially issue quite quickly.  Kaplan did indicate that the new three-member Board is unlikely to change significant NLRB precedent, because of the NLRB’s long tradition needing three votes to overturn such precedent.  This will slow the new NLRB from reversing Biden-era precedents such as those banning captive audience meetings and allowing card-check procedures where unfair labor practices have occurred.  However, Kaplan indicates that the new Board can still “clarify” certain Biden-era rulings, and Board traditions allow clarification even though a three-member majority may be necessary under Board tradition to overturn directly the prior precedent.  

In addition, the next nominee to be the new General Counsel of the Board is likely to be confirmed, Crystal Carey, a former management-firm partner.  Her nomination has previously been held up because of some concern expressed by Sen. Josh Hawley about Carey refusing to enforce NLRB precedent that she disagrees with.  Her nomination as General Counsel has been held up most of the year.  The General Counsel position is quite important at the NLRB, and some consider it the most important position, because the General Counsel decides whether to pursue cases, and has prosecutorial discretion in the process.

This article is part of our January 2026 Newsletter. 

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