the-national-labor-relations-board-is-back-in-business-C2-A0

After nearly a year on the sidelines, the NLRB regained its quorum following the confirmation of new Board members James Murphy and Scott Mayer.

What it means: The Board can now resume business as usual, including issuing final decisions in key labor cases, certifying union representation, and issuing new regulations. The Board had been unable to perform any of these functions, among others, without a quorum.

Yes, but: Traditionally, the NLRB will not overturn existing precedent without three members in the majority. New Members Murphy and Mayer will join lone existing Member David Prouty, a Democrat. Prouty is unlikely to join Murphy and Mayer in nearly any case that would overturn precedent – Biden-era Board precedent in particular (when Prouty was in the Democratic majority).

• Needing three members in the majority for overturning precedent is custom, and not law. Accordingly, nothing is stopping Murphy and Mayer from overturning precedent with a two-member majority.  

• Nevertheless, Murphy and Mayer have both indicated their intent to follow tradition and forgo overturning precedent without a third member joining them.

Why that matters: Adhering to that tradition means that the anticipated reversal of several employer-unfriendly Biden-era precedents – such as union representation without elections, restrictions on workplace rules, extensive new damages for violations, and captive audience meeting bans – will have to wait until another Board member is nominated and confirmed.

• In some instances, such as in Cemex (union representation without elections) and the Biden Board’s captive audience meeting ban, there is some room left for the new Board to further clarify the law in ways that limits those precedents without overturning them (which therefore can be done without a three-member majority).

• Mayer and Murphy could, for example, narrow the definition of prohibited captive audience meetings, without doing away with the ban in full.

Looking ahead: The Trump administration has yet to put forth another nominee for the Board, which would give it a three-member Republican majority.

• The Association, along with the rest of the business community, has urged the administration to fill that slot as expeditiously as possible.  

• Given how long it took the administration and the Senate to nominate and confirm Murphy and Mayer, it may be several months before the Board finally has a full Republican majority.  

The bottom line: Given the lengthy timelines for overturning precedent, time is already nearly running out for a full Republican majority-Board to undo the Biden-era Board’s controversial decisions (should Democrats retake the White House in 2028).