The NLRB Is Back In Business

By Tim Murphy - Skoler Abbott P.C.

December 30, 2025

After nearly a year on the sidelines due to the loss of a Board quorum, the NLRB is poised to get back in the labor law game in 2026. With the U.S. Senate’s recent confirmation of President Trump NLRB nominees James Murphy and Scott Mayer (and Crystal Carey as NLRB General Counsel), the NLRB can resume deciding cases and setting national labor policy.[1]

What to expect now?

The Board will seek to enact a more employer-friendly enforcement and policy agenda. It will likely seek to rescind a number of Biden Board decisions dealing with the voluntary union recognition (Cemex), restrictions on Employer-sponsored “captive audience” meetings, enhanced relief for employees affected by unfair labor practices, and the revised rule on joint employment.  This may take time because the Board must wait for a case that raises similar issues in order to do so. It cannot just strike Biden Board decisions by fiat.  

Other 2025 developments

While the NLRB went quiet, 2025 was not without significant labor law developments. For instance, federal public-sector unions experienced the double whammy of DOGE-initiated mass layoffs and President Trump’s Executive Order stripping union representation from hundreds of thousands of federal employees with “national security missions.”  Opponents of these actions have mounted legislative and court challenges, which remain pending.

In addition, “blue” states looked to step into the breach caused by the NLRB’s functional shutdown in 2025. New York and California expanded their state labor laws to conduct union elections and adjudicate unfair labor practices when the NLRB can’t or won’t. The NLRB’s General Counsel opposed the measures in court as intrusions into the Board’s exclusive jurisdiction. For the moment, courts appear to have sided with the NLRB.

Finally, 2026 may be a watershed year for the NLRB as the constitutionality of its structure has been called into question. The Fifth Circuit Court of Appeals ruled – in a case involving SpaceX – that the NLRB structure for deciding ULP cases violates the separation of powers. The U.S. Supreme Court may take the case up to settle the question. After ninety years, the way NLRB goes about its work could dramatically change in 2026.

We’ll keep you posted. Happy New Year!

[1] Author’s Note: Last year at this time I predicted: “2025 will almost certainly be a busy year at the NLRB as Trump 2.0 re-sets the NLRB’s course in a more business-friendly direction.” I sure got that wrong.

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