The Board Is Back: Impact of NLRB’s Restored Quorum and New General Counsel on Employers

The US National Labor Relations Board (NLRB or the Board) now has been revived with the recent confirmations of two new board members and a general counsel. The new board members give the NLRB a quorum and the ability to issue decisions for the first time in almost a year. Despite these appointments, the labor law landscape will remain in flux as the Board lacks a three-member majority to overturn Biden-era precedent, while new issues surrounding the agency’s independence and other challenges will define what we should expect to see from the NLRB.

Following a prolonged confirmation process, the US Senate confirmed James Murphy and Scott Mayer as new board members and Crystal Carey as the NLRB general counsel on December 18, 2025. Murphy is expected to be designated chairman, and both he and Mayer will join Democratic Member David Prouty, who has served as the Board’s sole member since August, 2025. Notably, the NLRB will only maintain a quorum through August 2026, when Member Prouty’s term expires.

Murphy is a longtime NLRB attorney who began as a student law clerk in 1974, went on to serve as counsel to many board members, and most recently served as chief counsel to former Chairman Marvin Kaplan. Mayer joins the NLRB from Boeing Co., where he served as chief legal counsel since 2022. Carey previously worked as an NLRB regional attorney and as counsel to NLRB members, and she takes over as NLRB general counsel following nearly seven years of private practice with Morgan Lewis.

WHAT TO EXPECT AT THE BOARD: IMPLICATIONS OF THE RESTORED QUORUM

While the addition of Murphy and Mayer gives the NLRB a quorum and restores the Board’s ability to issue decisions, the new Board will be unable to change pro-union decisions issued during the Biden administration. Under longstanding Board practice, the reversal of precedent generally requires three aligned members. This means that with only two Republican members, the Board will not be able to change existing precedent that employers have been closely monitoring. These include decisions addressing workplace rules,[1] the scope of employee protected activity,[2] representation demands and petitions,[3] mandatory workplace meetings,[4] and union campaign communications.

Although unable to overturn these prior cases directly, the Board retains the ability to shape outcomes through clarifications of existing precedent by narrowing or further defining concepts introduced in the Biden-era decisions. For example, the new Board could clarify when a bargaining order should issue under Cemex.

Notice-and-comment rulemaking may provide the NLRB the ability to overturn precedent with only a two-member majority. The Board, for instance, could reverse rules promulgated during the Biden years, including eliminating the quickie election rules or addressing other extant precedent.

In addition, after months of inactivity, the new Board inherits a substantial backlog. We should expect to see decisions in non-controversial cases and a focus on reducing the hundreds of cases awaiting issuance.

Accordingly, the practical implication is clear: while the NLRB can once again function, the Board may initially be focused on addressing the large inventory of cases currently pending before it, while wholesale reversals of Biden-era precedent will be difficult absent the addition of a third Republican member.

WHAT TO EXPECT FROM THE NEW GENERAL COUNSEL: A SHIFT IN ENFORCEMENT PRIORITIES

While major doctrinal shifts at the Board are unlikely in the near term, the more immediate change could come from the general counsel’s office.

New NLRB general counsel typically issues formal guidance setting forth enforcement priorities. We should expect General Counsel Carey to provide this guidance, which may modify or reconsider interpretations adopted by her predecessor Jennifer Abruzzo, including in areas such as protected activity, noncompetes, workplace recordings, and employment litigation discovery.

Employers also anticipate that General Counsel Carey will return the agency to its more traditional approach that prioritizes cases the agency views as having broader statutory significance, which may reduce the focus on ancillary issues like noncompete disputes or allegations concerning isolated handbook language divorced from other violations of the National Labor Relations Act.[5] Many also anticipate that the new general counsel will return the agency to its historic approach on settlements, giving regional offices greater latitude and placing less emphasis on maximum and extraordinary remedies that were the focus under the prior administration.

A permanent general counsel also will bring stability to the agency that has operated with an acting general counsel for the past year. The agency is facing staffing shortages and backlogs in many regional offices that may require the new general counsel’s immediate attention.

NEW RULES OF ENGAGEMENT AT THE NLRB

Several factors suggest that the new board members and general counsel may be forced to operate under a new dynamic that may not look like the typical Republican-controlled NLRB.

First, there are significant questions about the NLRB’s historic independence from Presidential control. Then-President Joseph Biden’s termination of the general counsel in 2021 established that the general counsel served at the pleasure of the president and could be removed at will. President Donald Trump’s removal of both General Counsel Abruzzo and Board Member Gwynne Wilcox in January 2025 now raises questions about board member independence and the control that may be exercised over them by a sitting president. The current US administration has challenged the independence of agencies across the federal government, terminating a number of presidentially appointed officials, and the presidential removal authority over these agencies is under active review by the US Supreme Court. A ruling from the Supreme Court is expected by July 2026. With removal protections weakened or eliminated and the NLRB potentially no longer independent, there is some uncertainty in how the agency will operate in the future.  

With greater potential control over the NLRB by the president, it is notable that the US administration and some Republicans in the US Congress have shown alignment with certain unions, including the International Brotherhood of Teamsters. Advocating against business interests on a number of blue-collar issues, the US administration has created major realignments in labor policy. This signals a more complex labor landscape at the NLRB.

THE NLRB’S CONSTITUTIONALITY CONTINUES TO BE UNDER FIRE

The NLRB also continues to face constitutional challenges. The US Court of Appeals for the Fifth Circuit, in particular, has been receptive to arguments questioning the structure of the NLRB and the removal protections for administrative law judges (ALJs) and board members. For example, the Fifth Circuit issued a decision signaling that structural Article II challenges to the NLRB, especially regarding “for-cause” removal protections for ALJs, are likely to succeed and can successfully block NLRB adjudications. The Fifth Circuit’s approach to issues of ALJ constitutionality, as compared to the Second, Sixth, and Tenth Circuits, is likely to lead to uneven enforcement nationwide as these cases work their way to the Supreme Court.

STATE LAW PREEMPTION LITIGATION

During the lack of NLRB quorum, several states moved to fill perceived gaps in federal labor law enforcement, resulting in direct conflicts with federal preemption principles. New York enacted S.8034 to allow its labor board to assert jurisdiction over private-sector disputes when the NLRB cannot act, prompting constitutional challenges by both the NLRB and Amazon under Garmon and Machinists federal preemption doctrines. California has taken a similar step with AB 288, authorizing its labor board to regulate private-sector labor relations, which the NLRB has likewise challenged as preempted.

TAKEAWAYS

In the short term, employers should anticipate a restart of case adjudications and appeals at the Board level but should not expect doctrinal upheaval and the overturning of Biden-era precedent. For employers with cases before the NLRB, clarification of existing precedent may provide one avenue through which the Board could address prior cases without formally reversing them.  

Employers should expect to see General Counsel Carey issue guidance regarding her enforcement approach and positions. At the regional level, it will be important for officials to adhere to General Counsel Carey’s guidance, particularly on issues like settlement negotiations.

In the longer term, employers should anticipate a renewed confirmation battle for one or more additional NLRB members later in 2026, as well as continued constitutional litigation and a potential structural reform at the NLRB, leading to a shift in board member removal authority and ALJ removal procedures.

While the Board is back, there is little historical analog to the current administrative and political backdrop, meaning employers must adapt their strategies to their individual cases and circumstances in the coming months—and perhaps in the coming years.

STAY INFORMED

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