The NLRB Lacks a Quorum. What Does That Means for Business and Unions?

After a member of the National Labor Relations Board (NLRB) found herself on President Donald Trump’s chopping block late last month, her dismissal could have ripple effects into the federal government’s ability to rule on labor-related issues.

The agency now finds itself without its normal power for the first time in more than 10 years, not because of a stubborn Senate unwilling to approve the president’s picks, but because of his own decisions. 

Experts said that could see the NLRB facing a serious backlog—and the inability to peel back some left-leaning precedent created by the board under the rule of President Joe Biden. The suspension of such power, they further noted, is neither in the interest of businesses, nor unions. It also may not be in the best interest of Republicans looking to surge big business interests forth, true to their promises. 

Here’s a look at what’s going on at the NLRB—and what it means for groups impacted by its current inactivity. 

Wait, what happened? 

As part of his sweeping purge of Biden-era officials over the past several weeks, President Trump chose to fire Gwynne Wilcox, a member of the board, and Jennifer Abruzzo, the agency’s general counsel. 

According to Joshua Nadreau, regional managing partner and vice chair of labor relations for law firm Fisher Phillips, the move to dismiss a member of the board is entirely unprecedented. While former President Biden made the then-unprecedented decision to dismiss the NLRB’s general counsel at the outset of his term, setting up precedent for Trump to do the same, members have always made it out of transitions of administration unscathed—until now. 

“An NLRB member has never been terminated in the history of the NLRB, and I don’t think anyone expected that to happen,” Nadreau explained. 

Wilcox had been, prior to her dismissal, one of three NLRB members. The board, at that time, also had two vacant seats; the Biden administration had put a Democratic nominee for the NLRB before the Senate, but when that vote failed, Democrats reneged on putting their other nominee, a Republican, up for a vote. 

But with Wilcox’s absence, only two of five possible seats are currently filled, so the NLRB lacks a quorum for the first time since Barack Obama’s second term—though the then-president did not fire any members of the board, in the way that President Trump has chosen to do. 

Experts’ previous expectations

Nadreau said he expected Trump to fill the two vacant seats he inherited via Senate confirmation, as with any other agency post. Because, prior to Wilcox’s termination, two of the members were Democrats, he likely would have nominated two Republicans. Had he done so, that would have left the board with a Republican majority; now, the board has one Democrat and one Republican to its name. 

Nadreau said, given that the Biden-Harris administration’s NLRB left behind worker-friendly precedents, he expected Trump would work to put together a board keen to replace those precedents. 

“We thought that the administration would move relatively quickly to fill those giving a Republican majority on the board, which would enable it to issue its decisions and try to return toward the [National Labor Relations Act] precedent before the Biden administration, which was particularly progressive,” Nadreau explained. 

And while William Cowen, Trump’s pick for the acting general counsel, has already issued a memorandum tearing down directives set into motion by Abruzzo, the NLRB still needs a quorum to be able to make decisions on many of those issues. 

Stalling on such a matter could see Trump’s big business allies adopting a bit of a temper, Nadreau said. 

“We’re stuck with the decisions that were issued [by] the Biden board. And, depending on how long this lack of quorum goes on, I think you’ll start to see more and more employers becoming frustrated,” he said. “I would think that if this gets into, six months, a year, you’d start to see a little bit more pressure from the more traditional members of the business community that say, ‘Hey, we’ve got to get moving.’”

Regional offices keep labor proceedings thrumming along

By and large, while the at-large NLRB may not be operating in full form, its regional offices have the ability to handle many run-of-the-mill processes. That includes union elections, and later, certifications, in the event of a successful election. 

“Election petitions, election campaigns and even the certification of representatives should all proceed as normal. All of those functions are largely handled by the regional directors throughout the country,” Nadreau said. 

But where lack of quorum comes to center stage is in the event of issues with a union election, or other labor-related proceedings, in which one or both parties challenge a regional decision. In that case, the NLRB often presides over decisions. Until it has a quorum, that type of decisioning cannot occur.

Nadreau said, in the case of a standard union election, if neither party alleges wrongdoing, regional offices handle the process. But, in the case that either party alleges unfair practices during the election cycle, the NLRB is often asked to step in. 

“The board only gets involved after that [election] process when there’s a petition for review—and that’s a discretionary appeal that the board can take if it elects to deal with issues that arise in the election process,” he explained. “The board’s position is that [elections] can continue unabated, and really, it’s not until you get to that request for review where anything has to stop, because the board can’t process the request for review in the absence of a quorum.” 

That same type of principle applies to accusations of unfair labor practices, even in the absence of a union election. In that case, the regional office uses information and statements provided by both parties to make a merit determination on whether unfair practices occurred. If so, that is typically passed on to an administrative law judge (ALJ), who makes a decision on whether the practice was unfair. 

But, if that ALJ’s decision is contested, the NLRB could be asked to step in—and that’s where, again, it’d need a quorum to come to a decision. Right now, that process—and thus, the enforceable judgement that comes with it—is inactive because of the lack of quorum. 

Still, Nadreau said, it’s unlikely that most businesses will use the board’s inactivity as a hall pass to commit unfair labor practices. In fact, he suspects, most large companies would prefer to have guidance—and many might prefer a more right-leaning interpretation of the National Labor Relations Act, which a Trump-led NLRB could feasibly bring about.

“Above all, I think employers would prefer some level of stability, but I don’t think the lack of a quorum is seen by companies and employers as carte blanche, we can do whatever we want, because that’s not really the case,” he said. 

What comes next? 

Nadreau said it’s likely in every party’s best interest to be doing business with a NLRB authorized to do their own business as usual—but there’s no predicting when or how that might happen. 

“The hope on our side is that these vacancies do get filled. [Trump] has a Republican Senate that I think would streamline his nominees, and have done so, so far, on his cabinet secretaries. There’s no reason to think that these nominations would be treated differently,” he said. 

Wilcox, the dismissed NLRB member, is currently suing the president, making the argument that he lacked legal cause to fire her. But as more time passes without a quorum, Nadreau said the NLRB only concedes its power more. If Trump and his Republican allies have rule-making aspirations or precedent-setting hopes, the sooner they can reload the board, the better, he explained. 

“You want more time than less time, and every day or week that goes by without a quorum, you’re limiting your ability to do this work. And the agency is backlogged—it’s not like a new board is going to come in and say, ‘Hey, we don’t have any cases,’” he said. “There are probably thousands of cases pending resolution before the board…and these take time.”