The National Labor Relations Board (NLRB)—the oldest “super agency,” created in 1935—is newly reconstituted and will be finding its way in an unprecedented setting and facing unprecedented challenges.
Background
President Trump, in an unprecedented move, fired Board Member Gwen Wilcox in January 2025, despite provisions in the National Labor Relations Act (NLRA) bestowing tenure protections for her. Wilcox has challenged this move in court, and her status will be decided by the Supreme Court in an allied case, Slaughter v. Trump, involving the firing of a member of the Federal Trade Commission (FTC) who enjoyed similar tenure protections. It’s widely believed the Court will permit both terminations, thus converting those who serve on federal boards and commissions into “at-will” employees serving at the pleasure of the president. In any event, as a result of the Wilcox termination, the Board lacked a quorum until recently and could not function. In January 2026, James Murphy and Scott Mayer were sworn in, creating a three-member Board. Many questions remain.
Captive Board?
This Board will likely be the first comprised of at-will employees. Having lost its independence, it’s an open question how the Board will respond and how the regulated community will respond to the Board. Although the Board is expected to try to reduce its huge (17,000 case) backlog with numerous noncontroversial decisions, its rulings will now have the stamp of political taint as never before.
In a post-Loper Bright legal landscape, the rulings of the Board, once all but sacrosanct, may now be scrutinized and rejected by a skeptical judiciary. Avoiding judicial review of a major decision may be a reason that the Board’s first decisive act was to issue a joint employer regulation that largely mirrors a prior rule.
Are Precedents Secure?
There’s a Board tradition that requires three votes to establish or overturn a precedent. A divided, three-member Board doesn’t meet this standard, but the new members swore to uphold this practice in their confirmation hearings.
Under the new operating conditions, however, we will soon learn whether the president believes in this tradition or whether the pressure from the business community to set aside some of the bolder pro-union precedents of the Biden/Abruzzo-era prevails. A recent footnote from Murphy and Mayer in Lodi Volunteer Ambulance Rescue Squad, Inc. and International Association of EMTs and Paramedics, Local R2-644, Case 22–CA–331846 (January 28, 2026) indicated that the precedent in Thryv, imposing consequential damages in unfair labor practice remedies, “will be addressed only if and when they are actually sought in a subsequent compliance proceeding.” This position was reiterated at a recent ABA meeting where the “possibility of reconsidering that practice in a future case” was raised. This is a significant new position which merits close monitoring.
New Members?
The Board’s dilemma could easily be addressed with the appointment of additional Board members. This may be in the works, as Member David Prouty’s (D) term expires in August.
There doesn’t appear to be any interest from the White House in letting the Board become nonfunctional again, so new nominations seem to be in the works—although a divided Senate, with many Senators campaigning for reelection, may not be able to act promptly or with finality.
Constitutionality Questions Persist
Although the recent collapse of the Space X matter on jurisdictional grounds relieves some of the urgency of the constitutional challenge to the Board and its administrative law judges, the issue will persist until finally resolved. The Slaughter ruling may do so, but we’ll have to wait to see. This uncertainty just adds to the tenuous state of the Board.
General Counsel Acts
In a recent memo, General Counsel Crystal Carey finally gave some guidance to the regions about her approach, which had been confined to reducing the backlog. She tightened the case-handling standards, requiring charging parties to provide considerably more information before the Board would act, and indicated that she would narrow the impact of disfavored precedents by means of prosecutorial discretion rather than waiting for new Board precedents.
Specifically, Carey advised that with respect to handbook clauses, her office would address acts based on such clauses that violate Section 7 of the NLRA, not just on the existence of the clauses themselves. Further, her memo also instructed regional offices to limit the use of some of the Board’s most serious remedies to labor law violations, particularly in settlements. This stance assuaged the disappointment of the business community when Carey initially refused to issue an advice memo outlining her specific goals and targets.