The National Labor Relations Board (NLRB) is the federal agency responsible for enforcing the National Labor Relations Act (NLRA), which applies to both unionized and non-unionized employees. In a perfect world, it consists of five “members” appointed to staggered, five-year terms by the president and confirmed by the Senate.
Many of the Board’s duties require a quorum of at least three members, the smallest number possible that includes a tiebreaker in the event of a split decision.
In 2024, the Board was already down one member, as the seat formerly occupied by Republican Member John Ring had sat vacant since December 2022. The Board’s Democratic Chair, Lauren McFerran, was nearing the end of her term but was renominated for a new five-year term by then-president Biden. President Biden also nominated Joshua A. Ditelberg, a Republican, to fill Mr. Ring’s long-vacant seat. However, the Senate failed to advance either nomination. Consequently, in early 2025, the Board had only three sitting members: Gwynne Wilcox (D), Chairman Marvin Kaplan (R), and David Prouty (D).
On January 27, 2025, President Trump removed Gwynne Wilcox without the “neglect of duty or malfeasance” cause required by the NLRA. Wilcox sued, but due to various appeals and stays, her situation remains unresolved. On May 22, the U.S. Supreme Court granted stays ensuring Wilcox will not sit on the Board until her case is fully litigated (assuming she prevails). As a result of her removal, the Board is down to only two sitting members, which means it is without a quorum and can’t carry out many of its duties, such as issuing decisions on unfair labor practice cases or ruling on election matters. While NLRB regional offices can continue to investigate charges, process petitions for elections, and issue complaints, any case requiring Board-level review cannot proceed.
As of now, the Trump White House has not formally announced any nominees. However, on June 10, Chairman Kaplan stated that nominations were “imminent,” suggesting the White House may be actively vetting candidates to fill the vacancies.
This is the most prolonged operational disruption at the NLRB since the Noel Canning decision, when the U.S. Supreme Court invalidated three 2012 recess appointments to the Board, leading to the nullification of hundreds of decisions made without a proper quorum.
Even if new members are eventually confirmed, the current paralysis is likely to result in a significant backlog of cases with no clear timeline for resolution. Until then, parties awaiting Board decisions are left in limbo. Employers Council will update members on any new developments. Contact us if you have questions.
Curtis Graves is an attorney for Employers Council.