The National Labor Relations Board (NLRB) has been in a stalemate, as it requires a three-person quorum to issue decisions but currently has only two board members. The situation remains in flux due to President Donald Trump’s recent nomination of two Republican board members: Scott Mayer, who is Chief Labor Counsel at Boeing Co. and has worked in corporate legal departments and management-side law firms for decades, and James Murphy, who is a former career NLRB lawyer, most recently serving as NLRB Republican Chair Marvin Kaplan’s Chief Counsel. If Mayer and Murphy are confirmed, they may arrive after Kaplan’s term expires on August 27, but the NLRB would still have a three-member quorum and could resume issuing decisions.
The NLRB has been operating without a quorum since January 27 due to Trump’s Democratic board member Gwynne Wilcox being removed without a qualifying cause having been identified, as is required by statute. On February 5, Wilcox filed a lawsuit to retain her job. Then, on April 7, the full en banc panel of the D.C. Circuit Court of Appeals ordered that Wilcox may return to work. However, the D.C. Circuit’s ruling was short-lived. On May 22, the Supreme Court of the United States (SCOTUS) granted a stay that the government sought in the case, which means Wilcox’s removal will stay in place while litigation continues regarding the extent of the president’s removal authority.
This 6-3 decision by SCOTUS may foreshadow the direction the Court will lean if it is asked to make the ultimate decision regarding the president’s removal authority, although it expressly stated it has not (yet) made that decision. A future decision could compromise the precedent set by Humphrey’s Executor v. United States, which stated that the president could not remove the federal trade commissioner except for certain reasons set forth by statute (inefficiency, neglect of duty, or malfeasance—basically, for cause).
Due to the recent order allowing President Trump’s removal of Wilcox to remain in place, the NLRB will not be able to adjudicate cases until it reaches a three-person quorum, which could happen soon given the recent nominations of Mayer and Murphy. The NLRB has had just two board members since Wilcox’s removal: Kaplan and Democratic member David Prouty. For now, we can expect limited activity from the NLRB, but it may kick back into gear soon, with the possibility of an employer-friendly board. This time of uncertainty is a good opportunity to review your employment handbook and workplace rules to ensure that you are up to date with current NLRB standards.
President Trump has also nominated Crystal Carey to the position of general counsel of the NLRB. Carey is an employer-friendly choice. Her nomination was sent to the Senate Health, Education, Labor and Pensions Committee more than 110 days ago, and she needs Committee approval before the full Senate can vote on her confirmation. She faced questions at a hearing before the Committee on Wednesday, July 16. That hearing included in-depth questioning by Republican Sen. Josh Hawley, who is concerned that Carey may not enforce worker-friendly NLRB precedent such as the NLRB’s 2024 decision that prohibited employers from holding mandatory anti-union meetings. The Committee has 12 Republicans and 11 Democrats, so Carey may need Hawley’s support to get Committee approval.
The authors thank Sam Snider, Summer Associate, for his contributions to this article.
