Yesterday, President Trump fired NLRB member Gwynne Wilcox. This termination violates Section 3(a) of the NLRA, which prohibits presidents from removing NLRB members except for neglect of duty or malfeasance. As a result, it sets the stage for a court battle over the constitutionality of these removal protections. The termination also reduces the five-seat NLRB to just two members—one short of the three-member quorum required under the Supreme Court’s ruling in New Process Steel.
The lack of a quorum does not completely shut down the NLRB. Some Board functions do not require the participation of NLRB members, while others are automatically delegated whenever a quorum is lost. Below is a summary of what the NLRB can and cannot do in its current state.
What Remains Unchanged
The majority of cases filed with the NLRB involve unfair labor practice (ULP) charges—such as allegations of retaliation and refusal to bargain—or representation petitions in which a union seeks certification as the bargaining representative for a group of workers. The initial processing of these cases remains unchanged.
Unfair Labor Practice Charges: When a ULP charge is filed, the NLRB’s regional office investigates, determines whether the charge has merit, and, if necessary, issues a complaint before an administrative law judge (ALJ). The ALJ then holds a hearing and issues a decision. These processes can continue uninterrupted, and most cases are resolved at this stage.
Representation Petitions: When a representation petition is filed, the regional office processes it, conducts union elections, rules on election objections, and certifies the union. These functions can also continue without an NLRB quorum.
What Gets Delegated
Subpart X of 29 CFR Part 102 outlines “Special Procedures When the Board Lacks a Quorum.” Under these provisions, certain motions and requests that are typically decided by the NLRB panel are instead referred to the Chief Administrative Law Judge (Chief ALJ), including:
Requests for special permission to appeal
Motions for default judgment
Motions for summary judgment
Motions for dismissal
While the Chief ALJ can issue rulings on these matters, those rulings remain appealable to the NLRB—but only as part of an appeal of the ALJ’s final decision in the case. This delegation ensures that ALJs can fully process cases without interruption, even though final resolution may be delayed until the NLRB regains a quorum. Employers can still stall proceedings by appealing once the ALJ process is complete, but at least those cases will be ready for an NLRB ruling as soon as a quorum is restored.
Under the Board’s 2011 “Order Contingently Delegating Authority to the General Counsel” contained at 76 FR 69768, in the absence of a quorum, any NLRB actions in federal courts that typically require Board approval are able to be initiated solely by the General Counsel. This includes Section 10(j) injunctions filed in district court against particularly egregious unfair labor practices, Section 10(e) petitions filed in circuit court to enforce Board decisions, and contempt proceedings filed in district court against employers that violate court-enforced Board orders.
What Comes to a Halt
Problems arise when cases advance to a stage requiring decisions that only the five-member NLRB panel can render.
Appeals to the NLRB Panel: Parties have the right to file "exceptions" (i.e., appeals) to an ALJ decision. However, when the NLRB lacks a quorum, it cannot issue decisions on these appeals, causing cases to stall indefinitely—leaving unfair labor practices unremedied.
Requests for Review: At various points in the process, including during representation case proceedings, parties can submit requests for review directly to the NLRB. The Board typically rejects most of these in brief, unpublished decisions. Without a quorum, it cannot rule on these requests. However, Board regulations clarify that such requests do not automatically stay action by the Regional Director. Specifically, the regulations state that when the Board lacks a quorum, “to the extent practicable, all representation cases may continue to be processed, and the appropriate certification should be issued by the Regional Director notwithstanding the pendency of a request for review.”
Employers intent on disregarding labor law can exploit the situation by prolonging cases until a Board decision is required. In ULP cases, this means appealing any adverse ALJ decision to the Board. In representation cases, employers can refuse to bargain with a union after it is certified. When an ALJ subsequently rules that a refusal to bargain has occurred, the employer can appeal that decision to the Board, effectively stalling the representation process indefinitely.