October 31, 2025 – Since President Trump’s dismissal of Board Member Gwynne Wilcox in January 2025, the National Labor Relations Board (NLRB) has entered a period of near paralysis, during which the substantive legal interpretation and application of the National Labor Relations Act (NLRA) have remained unchanged since the prior administration. The dismissal of Wilcox left the NLRB without a quorum—a minimum of three members required to issue final decisions and orders, or to conduct rulemaking. But this has not reduced the complexities and challenges for employers who are responding to charges of unfair labor practices and/or union election petitions (or bargaining with unions).

Prior to the ongoing government shut down, the NLRB’s Regional Offices were still prosecuting charges of unfair labor practices applying the more labor-friendly binding precedents of the NLRA, because they have not been overturned by the stymied NLRB.  Likewise, the Administrative Law Judges are required to apply binding precedents at administrative trials between the General Counsel of the NLRB and employers, even though the NLRB cannot ultimately issue a final order due to the lack of a quorum.

Notably these controversial union-biased precedents from the prior administration are being enforced:

Cemex Construction Materials Pacific, 372 NLRB No. 130 (2023) – If a union claims to have majority support of employees in an appropriate bargaining unit, the employer must either recognize the union or it has 2 weeks to file an RM petition, or else the union can file a failure to bargain unfair labor practice charge. If the employer files the RM petition to preserve employees’ rights to a secret ballot election, any proven objectionable statement in the company’s campaign that would have previously led to a rerun election will now result in the NLRB ordering bargaining with the union, with employees’ ballots entirely ignored.

Amazon.com Services, LLC, 373 NLRB No. 136 (2024) – Bans “captive audience” meetings during union campaigns, thereby preventing employers from educating employees on how collective bargaining actually works, and otherwise lawfully informing employees on the company’s views on unionization on paid working time at mandatory employee meetings.

American Steel Construction, Inc., 372 NLRB No. 23 (2022) – Making it probable that when a labor union seeks to represent a unit of employees that contains some, but not all, of the job classifications at a particular workplace, then the NLRB will allow the election to go forward unless the company can prove there are other classifications excluded from the petition that are overwhelmingly interrelated with the petitioned-for job classes.

Quickie Election Rule – This NLRB’s change to its regulations accelerated the time between a union (or employer-filed RM) petition and the secret-ballot election date, imposing burdensome deadlines on employers to assess and litigate any potential bargaining unit issues (e.g. under American Steel Const.) and drastically shortening the time available for employers to counteract union claims and educate employees on how unions and collective bargaining work.

Aside from ongoing litigation about the Wilcox removal in federal court, the Senate has made slow progress confirming more employer-friendly Board members. This means there is not any foreseeable establishment of a new quorum, so that the agency might eventually revisit precedents, set under the prior Democratic majority led by former Board Chairperson Lauren McFerran. Additionally, the backlog in open investigations and ALJ trials, and inertia at the agency will only be exacerbated by the ongoing government shut down.

In short, employers, employees, and unions remain bound by decisions from the prior administration, and no significant updates to NLRB doctrine are possible until the Board regains a quorum. If there is a quorum re-established after the government reopens, there will be an immense backlog of charges and election petitions to process, and briefed arguments concerning ALJ trials for the NLRB to consider.

But note, this has not stopped union activity and economic uncertainties that can correlate to union activities. Employers should take proactive measures to ensure supervisor and managerial awareness, and effective human resources strategies when considering management’s right to run their business in this complex and often burdensome regulatory era, both when employees are unionized or when the company is in a union-avoidance posture. Please contact one of our Kullman attorneys to assist you in preparing for union campaigning.