NLRB Primed to Move Quickly When Quorum Restored, Ex-Chair Says

The National Labor Relations Board is set to start issuing decisions as soon as the Senate confirms a pair of nominees who would give the board the minimum number needed to resolve cases, according to former Republican NLRB Chair Marvin Kaplan.

“It’s going to be immediate,” Kaplan, now an attorney with management-side firm Jackson Lewis PC, said in an interview with Bloomberg Law. “Once the quorum is restored, I think decisions will come out immediately.”

The incoming NLRB members have the experience and skills to “hit the ground running,” Kaplan said, plus they’ll be able to take advantage of work he and member David Prouty (D) completed to set the new board up for success.

Kaplan’s expectations for the NLRB’s speedy return to productivity will come as good news to the workers, employers, and unions who’ve seen their cases idle over the nine months the board has been unable to rule.

President Donald Trump hobbled the NLRB when he fired Democratic member Gwynne Wilcox a week after his inauguration. The board has been without a quorum ever since, aside from brief periods when a district court’s order reinstated Wilcox.

The US Supreme Court has put that order on ice, and Wilcox may have to wait for a final decision until after the justices rule on Trump’s firing of a Federal Trade Commission member.

New Members

In the meantime, the NLRB has been down to just Prouty since Kaplan’s term expired at the end of August.

The Senate labor committee has advanced James Murphy, a longtime NLRB staffer who came out of retirement to become a board member, setting him up for a confirmation vote. But the panel has yet to approve Scott Mayer, chief labor counsel at the Boeing Co., apparently due to some senators’ concerns about an ongoing strike at the aerospace company’s facility in St. Louis.

Still, Mayer getting bumped from consideration during an Oct. 9 committee meeting looks more like a temporary delay rather than a death knell for his nomination.

Sen. Josh Hawley (R-Mo.), who was harshly critical of Mayer and Boeing during an Oct. 1 nomination hearing, said that he’s still seeking more information from Mayer as part of the “normal process.”

“This is what I do to all nominees,” Hawley told Bloomberg Law. “I have a lot of questions. He’s been very forthcoming with his answers. So I think that’s a good sign.”

Decisions in the Wings

Kaplan’s positive outlook on NLRB productivity once the quorum is restored stems in part from the preparatory work he and Prouty focused on after Wilcox’s termination.

Board staff identified cases that they’d likely agree on, and the pair developed draft opinions that a new member, after reviewing the case record, could potentially sign onto with little or no substantive change, he said. Kaplan and Prouty completed draft opinions in roughly 10 cases per month, and only twice did they disagree to the point that they needed dueling opinions for the same case. The former board chair declined to provide specifics about the cases he and Prouty worked on.

Kaplan recognized in February that it would take several months for new members to join the NLRB, but the White House and Senate couldn’t fill any empty board seats before his term lapsed six months later.

While Kaplan’s exit changed the dynamics, since it will be two new board members who will review each case, he’s hopeful that his 2025 work will still be useful.

“I have a high level of confidence that the incoming board members will use every tool that they have to expedite the issuance of cases,” the former chair said. “And I have faith that that includes whatever work we did.”

Need for Speed

Kaplan also expressed confidence in the two board nominees to quickly grind away at the backlog of pending cases.

“If there’s anyone on the planet who recognizes the importance of moving cases, it’s Jim Murphy,” he said. “There’s a champion there even more so than some people recognize.”

While Murphy’s a career government lawyer with mastery of agency procedure and labor law, Mayer brings a fresh perspective and relatively rare background for a board member by coming directly from a company’s legal office, the former chair said.

Murphy, who served as Kaplan’s chief counsel before he retired in 2021, would “think outside the box” for strategies to move cases more quickly, Kaplan said.

But on some level, Kaplan said, increasing decision-making speed is simple. It takes commitment—even if it means working on weekends—as well as imposing timetables for finishing opinions.

Nevertheless, the biggest boost to NLRB productivity could be the administration filling all the empty seats, Kaplan said.

The NLRB hasn’t had its full complement of five members since Republican member John Ring left the board in 2022. Even if the Senate confirms Murphy and Mayer, the board will still have a pair of open seats, one for each party.

A three-member board can issue decisions, but it’s unlikely to change NLRB case law, unless Murphy and Mayer abandon the agency’s long tradition of needing three votes to overturn precedent or Prouty joins the Republican members to strike down standards set by prior Democratic-majority boards.

Kaplan said he supports that tradition as a guard against excessive flip-flopping, even though that will slow the Republican-majority board from reversing Biden-era precedents, such as those banning captive audience meetings and discouraging labor law violations prior to union elections.

“The board works best with five members, regardless of who’s in charge,” he said. “The board works best with three votes in the affirmative to overturn law, regardless of who’s in charge.”