The NLRB Is Back to a Quorum—What That Means (and Does Not Mean) for Employers

By Jennifer Dunn and R. Jason Patterson - Franczek P.C.

January 15, 2026

The National Labor Relations Board (NLRB) is back to operating after recent confirmations restored a quorum and a new General Counsel. While the Board can once again issue decisions, it currently lacks the votes needed to overturn significant union-friendly decisions from the prior administration. In the meantime, we expect the Board to issue decisions applying and clarifying existing law, the new General Counsel to reveal her enforcement agenda, and the courts to weigh in on ongoing constitutional challenges to the Board’s structure and authority.

Recent Confirmations Restore the Board’s Ability to Act

On December 18, 2025, the Senate confirmed two new Board members: James Murphy, a longtime Board attorney who has served on the staff of multiple Board members, and Scott Mayer, former Labor Counsel for Boeing. With these confirmations, the Board now consists of three members: two Republicans and one Democrat, Chair David Prouty.

On the same day, Crystal Carey, a former NLRB attorney and Morgan Lewis attorney, was confirmed as the NLRB’s new General Counsel (GC). Together, these confirmations restore the agency’s ability to set its priorities, and issue decisions that will impact labor policy.

Unfavorable Precedent Likely to Hold—for Now

Employers should temper their expectation that all the union-friendly decisions from the previous administration will suddenly vanish. With three sitting members, the Board has a quorum and can decide cases. However, under longstanding Board practice, the NLRB generally requires a three-member majority to overrule existing precedent. Because the current Board is divided 2–1 along party lines, it is not expected to overturn major prior decisions at this time.

That does not mean the Board will be inactive. The Board may issue decisions applying existing law, clarifying prior holdings, or resolving open questions. As a result, employers are closely watching how the Board continues to develop the law in several key areas, including:

- Confidentiality and non-disparagement provisions in severance and settlement agreements
- Employer bargaining obligations and remedies tied to unfair labor practices during union organizing campaigns
- Framework for evaluating employer work rules
- Restrictions on captive-audience meetings
- Expansion of remedies for unfair labor practices
- Limitations on employer management-rights provisions
- Employee discipline tied to activity protected by the Act

Why the New General Counsel Matters

The confirmation of a new General Counsel is significant. The GC controls the NLRB’s enforcement agenda and directs the work of the regional offices. Historically, new General Counsels issue guidance memoranda that signal enforcement priorities, articulate interpretations of existing law, and identify the types of cases the agency will seek to prosecute or to use as vehicles for potential future change.

Employers should expect such memoranda in the coming months, which will provide early insight into how the GC views existing precedent and how regions will investigate, charge, and litigate cases. These enforcement choices can have as much practical impact as Board decisions themselves.

Ongoing Litigation and the Risk of Further Politicization

In addition to the internal changes, the NLRB remains at the center of broader constitutional and administrative law challenges. Courts are currently considering cases that question the removal protections applicable to Board members and administrative law judges (ALJs). The outcomes of these cases could materially affect the independence of ALJs and the structure of the agency itself.

For an agency that already shifts in emphasis with changes in presidential administrations, these challenges raise the possibility of even greater politicization, causing additional uncertainty for employers navigating the Act.

Looking Ahead

While the Board is once again able to issue decisions, meaningful shifts in NLRB precedent are likely to take time. In the interim, employers should focus on how existing law is applied, how the new GC shapes enforcement priorities, and how pending legal challenges may affect the agency’s structure and independence.

We will continue to monitor developments at the Board and in the courts and provide updates as this transitional period unfolds.

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