Key Points:

• The NLRB was effectively crippled throughout 2025 because it lacked quorum as a result of Board Member Gwynne Wilcox’s termination and delayed nominations.
• Biden-era precedents remain intact, including strict scrutiny of workplace rules, bans on captive-audience meetings, expanded remedies for unfair labor practices, and expanded bargaining obligations.
• If confirmed, two pending nominees, Scott Mayer and James Murphy, would quickly restore a quorum and the Board could begin issuing decisions, making preparation and policy review essential for employers.

As 2025 draws to a close, employers hoping for change in National Labor Relations Board (NLRB or Board) precedent have confronted a frustrating reality: the absence of an operational quorum has effectively frozen the agency’s ability to reconsider a series of controversial, union-friendly decisions issued under the Biden Board.

What was expected to be a transitional year — one that could set the stage for a shift in Board philosophy — became, instead, a lost year for management-side stakeholders.

As a result, Biden-era precedents remain on the books, including decisions that constrain discipline for employee misconduct during protected activity and ban so-called “captive audience” meetings. In addition, several states have jumped into the fray, enacting laws that purport to allow state labor authorities to enforce the National Labor Relations Act (NLRA) in the absence of a Board quorum.

How Did We Get Here?

Despite early signals that the administration would move quickly to reshape the NLRB, nominations were delayed, leaving the Board without the three-member quorum required to issue adjudicatory decisions.

The absence of a quorum began in January when President Trump fired then-Board Member Gwynne Wilcox. After Chairman Marvin Kaplan’s term expired this summer, only one Member, Biden-appointee David Prouty, remains.

Although NLRB Acting General Counsel William Cowen has maintained day-to-day operations at the agency’s regional offices, the Board cannot issue decisions without at least three members, making overall policy reconsideration impossible. Cowen’s appointment as Acting General Counsel was a rare bright spot for employers, as evidenced by his wholesale rescission of a host of enforcement directives issued by his predecessor, Jennifer Abruzzo, as we wrote about here.

The Board’s inability to act has left employers operating under Biden-era precedents that remain fully intact.

Delayed Nominations

In July 2025, President Trump nominated Scott Mayer and James Murphy, who, if confirmed by the Senate, will restore a quorum on the Board.

In both the Biden and first Trump administrations, newly appointed Board members joined the agency in August and September of the first year of those presidencies. It remains to be seen when Mayer and Murphy will be confirmed.

As delays mount, some states have passed or proposed laws seeking to effectively enforce the NLRA if the Board is unable to do so. We have written about the possibility that these new laws conflict with the NLRA, and are therefore unconstitutional. Recently, the NLRB filed lawsuits against New York and California making this argument, and an employer has sued over New York's law.

See our previous alerts:

• Court Halts New York’s Attempt to Regulate NLRA-Covered Labor Relations
• New York Governor Signs Bill Authorizing State to Enforce Federal Labor Law
• States Pondering ‘Trigger’ Legislation to Enforce the National Labor Relations Act
• State Labor Bills Are ‘Very Likely Unconstitutional,’ Top NLRB Lawyer Says

Slow Confirmation Process

Mayer and Murphy did not receive hearings before the Senate Health, Education, Labor and Pensions (HELP) Committee until October 2025; Murphy was voted favorably out of committee shortly thereafter.

The confirmation path became more complicated for Mayer when Republican Sen. Josh Hawley of Missouri voiced concerns, and his nomination was not approved by the HELP Committee until early December 2025. Mayer’s stalled nomination has deprived the Board of the votes required to issue decisions. Both he and Murphy must be confirmed by the Senate to restore a quorum.

Even if these nominees are confirmed soon, reconsideration of Biden-era precedents would take time. By Board tradition, three members are required to overrule precedent. Murphy and Mayer are Republican nominees, whereas Prouty is a Democratic appointee, making it unlikely the three would issue unanimous decisions on controversial cases, particularly those decided by Prouty during the last administration.

Sen. Hawley also voiced concerns about Crystal Carey, the administration’s nominee for NLRB General Counsel, who was nominated in March 2025 and not voted favorably out of committee until October 2025.

Consequences: A Lost Year of Board Decisions

The combined impact of these disruptions is a Board unable to issue decisions, reconsider burdensome standards or provide clarity on key labor-management issues. Notable Biden-era precedents remain in place, including:

• Cemex bargaining orders
• Strict scrutiny of workplace rules, including dress codes
• Limitations on employer investigations and confidentiality instructions
• Prohibiting employers from conducting “captive audience” meetings
• Expanded employer obligations in collective bargaining over discretionary policies
• Narrow independent contractor classification
• Weakening contractual management’s rights clauses
• Restrictions on employee discipline for abusive or offensive conduct during protected activity

For employers, the result is continued uncertainty — and continued exposure to pro-union precedents set during the prior administration.

However, there is potential for some positive movement on the horizon for employers. Once a quorum is re-established, a functioning Board majority could begin issuing decisions within weeks of confirmation because many cases have been briefed and are ready for decision. But controversial cases would likely continue to languish in the absence of a unanimous Board.

While You Wait

While the Board remains constrained, employers should:

• Maintain compliance with current Biden-era standards. These precedents remain “the law” before the Board, although not all decisions of the Biden Board have been upheld in the appellate courts.
• Review employee manuals to minimize risk under current Board standards.
• Prepare for long-pending cases to be decided quickly once a quorum is restored.

Although 2025 has been a year of administrative stagnation, the groundwork is being laid for potential changes once the Board regains a quorum. Employers should stay attentive: when confirmations finally move, the NLRB may pivot quickly from inaction to issuing decisions.

For more information on this and related topics, contact authors Robert Nagle at rnagle@foxrothschild.com or 215.299.2064, Mark Eskenazi at meskenazi@foxrothschild.com or 202.461.3109, or any other member of our Labor & Employment Department.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the authors and not necessarily this law firm or its clients.