Employers may be wondering about the lack of new developments from the National Labor Relations Board (NLRB) in 2025. Following President Trump’s inauguration, the NLRB lacked a quorum for most of 2025 and was unable to issue decisions since March of 2025, leaving the NLRB with a looming backlog of cases, and employers and unions in a kind of “dead era” of limbo, expecting but not yet receiving significant changes on key issues under the federal labor law. But, on December 18, 2025, the U.S. Senate confirmed two new board members, creating a quorum, and a general counsel.
Brief History of the NLRB
In 1935, the NLRB was formed pursuant to the National Labor Relations Act (NLRA), which guarantees the rights of non-management employees who collectively bargain and organize and engage in protected activity and prohibits unfair labor practices by both employers and unions.
The NLRB is comprised of five members, who are nominated by the President and approved by the Senate, each serving a five-year term. The NLRB General Counsel – who serves in an independent role, investigates and prosecutes unfair labor practices complaints – is also nominated by the President and approved by the Senate and serves a four-year term.
The NLRB Needs a Quorum
In order for the NLRB to issue decisions, it needs a quorum of at least three members – a requirement set by the U.S. Supreme Court. See New Process Steel, L.P. v. N.L.R.B., 560 U.S. 674, 130 S. Ct. 2635, 177 L. Ed. 2d 162 (2010). Until late December of 2025, the NLRB had one Board member – Democrat David Prouty. President Trump nominated two Republicans to join the Board, Scott Mayer and James Murphy, but the U.S. Senate did not confirm either until late December of 2025 at which time they were confirmed along with Crystal Carey as NLRB General Counsel.
Historically, the NLRB has declined to overrule precedent in the absence of a full five-member board. Thus, during this “dead” era in 2025, not only was the NLRB prevented from deciding new or remanded cases, it was not in a position to even consider reversing precedent on critical issues where policy change is expected given the change in the White House.
For instance, Acting General Counsel (GC) Cowen issued a memo in May of 2025 rescinding dozens of previous GC memos staking out policy and prosecutorial positions on NLRA enforcement under the Biden administration. Among those rescinded was one interpreting and implementing the NLRB’s expanded scope of remedies for unfair labor practices in a decisionknown as Thryv, which stated:
We conclude that in all cases in which our standard remedy would include an order for make whole relief, the Board will expressly order that the respondent compensate affected employees for all direct or foreseeable pecuniary harms suffered as a result of the respondent’s unfair labor practice.
372 NLRB No. 22 at 6 (Dec. 13, 2022).
Acting GC Cowen made clear his disagreement with the scope of that decision, siding with the dissent and directing the NLRB regional offices, for settlement purposes, to focus only on foreseeable harms that are clearly caused by the unfair labor practice. Acting GC Cowen has authority to direct enforcement activity at the regional level but has no power to actually reverse Board precedent so Thryv, for now, remains the governing legal standard. It remains to be seen if, with the recently established quorum, the Board will move to reverse this precedent or wait for a five-member board as it traditionally has done in the past.
Another example of an issue awaiting NRLB action is the Board’s position on employer rules governing the wearing of insignias and political slogans on employees’ uniforms. In late 2025, the federal Eighth Circuit Court of Appeals reversed a 2024 NLRB ruling involving Home Depot’s termination of an employee for violating its uniform rule by wearing Black Lives Matter insignia. The appellate court found that the NLRB had “improperly evaluated” the employer’s reasons for the rule. The Board had been unable to consider a more proper evaluation of the rule in this case as it lacked a quorum until recently, and it still may be unwilling to evaluate this rule until all five seats are filled.
Bottom Line
With a quorum, a new General Counsel and the end of this dead era in sight, employers and unions alike are likely to start receiving clarity on a range of important issues under the labor law that have been contested in recent years.
For Your Attention
When filing or responding to an unfair labor practice charge, it is important to know that the NLRB has issued new agency-wide procedures for processing these claims, including when substantial evidence is due by the charging party. Please reach out for assistance when filing or responding to these charges to ensure compliance with these new protocols.
Our Labor Team
If your company finds itself navigating labor issues, before the NLRB or otherwise, Lathrop GPM is here to assist you with a team of qualified labor attorneys who have invaluable experience. Please contact: Mark Mathison, Jack Rowe, Terry Kilroy, Emily Neumann, or Michael Link.