NLRB Has Regained its Quorum
Decisions will start coming out again, as will changes to Board law.
Last night, the Senate confirmed a new General Counsel and two new members of the National Labor Relations Board. The new General Counsel is Crystal Carey, a partner at the management-side law firm Morgan Lewis. The new Board members are Scott Mayer, who also worked for Morgan Lewis, and James Murphy, who has worked on staff for many prior Board members, including most recently Marvin Kaplan.
Mayer and Murphy join Democrat David Prouty on the Board, bringing the NLRB up to the three members necessary to have a quorum. The Board has lacked a quorum since January 28, 2025, following the termination of Board Member Gwynne Wilcox.
The main practical result of this is that the Board will be able to resume issuing decisions on requests for review from Regional Director decisions and exceptions to Administrative Law Judge decisions. The resumption of a quorum should benefit workers and unions because employers will no longer be able to rely on cases stalling out once they reach the Board level of the agency process.
However, the new Republican-dominated Board is also likely to begin revising Board law in a more management-friendly direction. Earlier this year, the anti-union trade association Coalition for a Democratic Workplace (CDW) compiled a list of desired revisions, indicating what sorts of precedents might be targeted by the new Board.
By tradition, the Board has declined to overrule its precedent unless it has three affirmative votes to do so. Securing these votes is generally accomplished by having the full five-member Board (rather than a three-member panel) vote on cases where precedent is being reversed. But the new Board only has three members, one of whom is a Democrat. Consequently, the Board is unlikely to achieve three affirmative votes for overruling precedent. It remains to be seen whether this new Board will follow the three-affirmative-vote tradition or abandon it in favor of reversing precedent in 2-1 decisions.
Soon, the new General Counsel will likely issue a memo directing the Regions to submit certain kinds of cases to the Division of Advice for guidance. That memo will provide useful guidance about what kinds of changes to Board law she will seek, though not all changes sought by General Counsels end up being adopted by the Board.
This event has been added to my Timeline of Notable NLRB Events During Trump’s Second Term.