NLRB Facing ‘Lost Year’ on New Precedents Despite Path to Quorum

While Senate approval of President Donald Trump’s National Labor Relations Board nominees will restore its quorum, restarting its ability to issue decisions, the board’s Biden-era precedents are likely to remain unchanged after the two Republican candidates are confirmed.

Scott Mayer, chief labor counsel at the Boeing Co., and James Murphy, a former career NLRB lawyer, lack a realistic timeline to join the board before Chair Marvin Kaplan’s term expires, according to labor law observers.

Even if the nominees get the Senate’s blessing, an NLRB with Mayer, Murphy, and Democratic member David Prouty would encounter longstanding board tradition against altering precedent with less than three votes in the majority, they said.

“This is a lost year for substantive change at the National Labor Relations Board, unless some extraordinary procedural developments occur in the Senate and the White House has another Republican nominee ready,” said Roger King, senior labor and employment counsel for the employer group HR Policy Association.

The prospect of the NLRB keeping in place worker-friendly case law set during the last administration into 2026 deals a blow to companies, especially those with workers who have a union or are organizing toward forming one.

“Employers are assessing risk amid uncertainty because of anticipation that there might be changes on the horizon, yet all the cases from the Biden board continue to stand,” said Meredith Kirshenbaum, a management-side attorney with Goldberg Kohn Ltd.

Instead of filling the two board seats that were open at the start of his second administration—which would have created a 3-2 Republican majority—Trump robbed the board of its three-member quorum by firing Democratic member Gwynne Wilcox.

Trump also axed Democratic NLRB General Counsel Jennifer Abruzzo, but hasn’t filled that position with a permanent replacement, either.

His GC nominee, Crystal Carey of Morgan, Lewis, & Bockius LLP, faced tough questions and blunt criticism from a Republican on the Senate committee considering her fitness for the position. As of July 18, the panel left Carey off its list of nominees who will receive votes this week on whether they’ll advance to the full Senate, a signal that her candidacy may be in trouble.

Stress Testing Tradition

Mayer and Murphy joining Prouty to form a divided three-member board would test the durability of its norm against overturning precedent with fewer than three members in the majority.

“Knowing what I recall about Jim Murphy, I think he would be loyal about that norm,” said Mark Gaston Pearce, who chaired the NLRB during the Obama administration. “Knowing what I know about the type of influence the Trump administration has on the agency, all bets are off.”

The most likely scenario is that a GOP majority of Mayer and Murphy would take a restrictive view of existing precedent, then focus on overturning it once a third Republican arrives, said Pearce, a visiting professor at Georgetown University.

Mayer will face a steeper learning curve at the NLRB than Murphy, who worked at the agency for decades before retiring. Murphy served as chief counsel for several Republican board members, including Kaplan.

New Chair for Fall

Swift Senate action on the NLRB member nominees is hindered by the approaching August recess, which is scheduled to last virtually the entire month.

Kaplan’s term expires Aug. 27, meaning that Trump would name either Murphy or Mayer to the position if they’re confirmed in September or later.

Murphy seems to be more prepared to step into the role of chair due to his vast experience at the agency. But Trump made a longer commitment to Mayer, making it uncertain who he’ll select.

Mayer is slated to fill a seat that has a term expiring in December 2029, while Murphy would fill a seat that runs out in December 2027.

Forward Progress

If the board goes back online in the fall with two Republican members and one Democrat—and it respects the norm on changing precedents—then it will focus on routine cases until a third GOP member arrives, said Lauren McFerran, who spent a decade on the NLRB and led the board during the Biden administration.

A functioning board could get cases moving that employers have stalled by arguing that regional directors can’t certify union elections absent a quorum, said McFerran, now a senior fellow at The Century Foundation.

Although the NLRB hasn’t issued any precedential decisions in 2025, she said, it’s been a “year of dramatic change” in light of two unprecedented developments: Trump’s firing of a board member and claim of direct control over the independent agency.

“I wish it had been a lost year, but it’s been damaging institutionally rather than precedentially,” she said. “It’s yet to be seen whether the board can emerge from this year looking like it used to look.”