By Letitia Silas and Ashley D. Mitchell

After nearly a year of interim leadership and inactivity at the top adjudicative level at the National Labor Relations Board (NLRB), the Agency is back on track.  Recently, the Senate confirmed the President’s nominees, Scott Mayer and James Murphy, to fill two empty Board seats as well as Crystal Carey to lead the Agency as its new General Counsel.

The Board is composed of five members appointed by the President with Senate confirmation.  Since January of this year, the Board lacked a quorum and was unable to issue decisions enforcing the National Labor Relations Act.  Prior to January, the Board had three members, led by a union-friendly majority including veteran union lawyers Gwynne Wilcox and David Prouty. However, the President’s removal of Wilcox soon after taking office left only two members: former Chairman Marvin Kaplan and member Prouty, which rendered the Board unable to fulfill its primary function of setting federal labor law and policy through adjudicative decision-making.  Kaplan’s term ended on August 27, 2025, which then left the Board with only one sitting member until last week.

The confirmation of Mayer and Murphy returns the necessary quorum for issuing Board decisions.

What We Know About the New Board Members  

We previously reported here that regardless of politics and political affiliations, it is undeniable that both new Board members bring substantial traditional labor experience to the Board.  Mayer, former Chief Labor Counsel for a major global enterprise, could introduce a much-needed practical, business perspective to the interpretation and application of the National Labor Relations Act. This is especially desired following years of abstract, ideological decisions disregarding valid business interests and practical workplace realities. Murphy, a career NLRB attorney who once served as chief counsel to former Chairman Kaplan, could contribute deep institutional knowledge to the Board’s case law, practice, and procedures. Mayer’s term is set to expire December 16, 2029, and Murphy’s term will expire December 16, 2027.

While no one can fully predict the precise direction of future Board decisions, we previously discussed what existing Board precedent a new, employer-friendly Board may seek to overturn.

Status of Former Member Wilcox

Meanwhile, former Board member Gwynne Wilcox remains sidelined after the D.C. Circuit refused to reinstate her employment, finding that the existing job protections for Board members under the NLRA are likely unconstitutional.  The matter is likely headed to the Supreme Court, which earlier this year stayed a district court’s order reinstating Wilcox pending appeals.  On appeal, the D.C. Circuit Court refused to reinstate Wilcox, noting that in staying the district court’s order, the Supreme Court stated that the NLRB exercises considerable executive power, which could make the removal restrictions for Board members unconstitutional.

Status of the NLRB’s Prosecutorial Arm

The Senate’s confirmation of Crystal Carey to serve as General Counsel for the Agency crystalizes official prosecutorial leadership and agency guidance.

Carey, also a former NLRB attorney, who recently represented employers as an attorney at a large law firm, is expected to pursue an employer-friendly agenda.

Four Steps Employers Can Take Now

1. 1. Comply with Existing Law: Although many of the decisions issued by the previous Board disregard or minimize important business interests and are biased in favor of unions, those decisions are still the law of the land until they are overturned. 
   2. Stay Vigilant: Stay on alert for new GC guidance memoranda and Board decisions that are expected to start issuing soon, as these could significantly impact your workplace practices aa well as your labor and employee relations strategies. In the meantime, stay informed and dialed into your organization. Keep the lines of communication open with your employees and explore opportunities to continue to be an employer of choice
   3. Train Supervisors and Managers: Ensure they understand the NLRA, protected concerted activity, union activity, and best practices with respect to each. CMC’s Labor Relations/Collective-Bargaining masterclass is designed to keep union and non-unionized employers informed and prepared.
   4. Consult Experienced Labor Counsel: Engaging experienced labor counsel can help your organization stay updated on legal changes, assess risks, and determine effective strategies for protecting your interests.