The NLRB Is Back in Business — But Major Change Will Have to Wait

By Benjamin A. Nucci

The National Labor Relations Board (“NLRB” or “Board”) has resumed operations after a prolonged period without a quorum, restoring its ability to decide cases and issue precedent. Yet the Board’s narrow composition, looming vacancies, and ongoing constitutional challenges mean that its renewed activity will emphasize case management and enforcement strategy rather than sweeping doctrinal change.

A Quorum Restored, Temporarily

For most of 2025, the NLRB lacked a quorum and was unable to decide cases arising under the National Labor Relations Act. That changed on January 7, 2026, when President Trump’s nominees, James Murphy and Scott Mayer, were sworn in following Senate confirmation. They join Member David Prouty, a Biden appointee.

The Board’s restored quorum, however, is short-lived. Member Prouty’s term expires in August 2026, after which the Board will again fall below the quorum required to issue decisions unless additional members are confirmed.

Clearing the Backlog, Not Rewriting the Law

After months of inactivity, the newly reconstituted Board inherits a substantial backlog. In the near term, employers should expect a focus on issuing decisions in non-controversial cases and reducing the hundreds of matters that have been awaiting resolution.

What employers should not expect — at least for now — is a wholesale reversal of pro-union precedent issued during the Biden administration. Under longstanding Board practice, overturning precedent generally requires three aligned members. With only two Republican members currently serving, the Board lacks the votes necessary to reverse many decisions employers have been closely monitoring, including those addressing workplace rules, the scope of protected concerted activity, representation petitions and demands, mandatory workplace meetings, and union campaign communications.

A New General Counsel Sets the Enforcement Agenda

The NLRB also begins 2026 with a new General Counsel, Crystal Carey. General Counsel Carey is expected to shape the agency’s direction by prosecuting cases designed to tee up reconsideration of key precedents discussed above and to steer the agency in a more employer-friendly direction.

As in prior transitions, employers should also expect the issuance of General Counsel memoranda rescinding or revising prior guidance that does not align with her enforcement priorities. These memoranda typically identify precedents the General Counsel intends to challenge and announce adjustments to case-handling practices and internal agency procedures.

Constitutional Challenges Gain Momentum

At the same time, the NLRB continues to face serious challenges to its structure. On August 19, 2025, the United States Court of Appeals for the Fifth Circuit upheld injunctions barring the NLRB from prosecuting unfair labor practice cases against three companies. A three-judge panel concluded that statutory removal protections for NLRB members and administrative law judges likely violate the U.S. Constitution. The court emphasized that being subjected to proceedings conducted by unconstitutionally insulated officers constitutes irreparable harm, justifying preliminary injunctive relief.

By contrast, on October 28, 2025, the United States Court of Appeals for the Ninth Circuit unanimously rejected similar constitutional challenges in a published decision. This growing split between the Fifth and Ninth Circuits makes Supreme Court review all but inevitable. The issue is widely expected to reach the Supreme Court of the United States in the near future.

Key Takeaways for Employers

Employers should anticipate a resumption of case adjudications and appeals at the Board level, but not immediate doctrinal upheaval or the widespread reversal of Biden-era precedent. Clarification of existing precedent — rather than outright overruling — may provide the principal mechanism for incremental change. Employers should also closely monitor guidance from General Counsel Carey, which will offer early insight into enforcement priorities and litigation strategy.

Looking ahead, employers should expect renewed confirmation battles for one or more additional NLRB members later in 2026, continued constitutional litigation, and the real possibility of structural reform at the agency — particularly with respect to board-member and administrative law judge removal authority.