On July 17, 2025, the Trump Administration sent a number of key nominations to the Senate, including two National Labor Relations Board (NLRB or Board) nominees. The five-member Board has lacked quorum since January following the controversial dismissal of Democratic member Gwynne Wilcox. The NLRB has been unable to make any decisions or set any policy since January but will return to full functioning capacity if the nominees are confirmed.
Background
The NLRB is a large governmental agency that oversees union matters and labor practices in the U.S. The five-member Board issues decisions on union matters and certain collective actions by employees. The Board requires a three-member quorum. The Board currently sits with two members: Marvin E. Kaplan (Chair) and David Prouty. Board Members are appointed by the President and serve five-year terms following Senate confirmation. Two former members’ terms expired this past January and Member Wilcox was dismissed, leaving the Board incapacitated.
The dismissal of Wilcox has led to a series of lawsuits. Wilcox asserts she was unlawfully terminated by the President. She filed a lawsuit in protest and the United States District Court for the District of Columbia reinstated Wilcox. That decision was appealed to the DC Circuit Court of Appeals which reversed the lower court decision; Wilcox was again discharged. Last month, the Supreme Court upheld the Circuit Court and reissued the temporary stay preventing the reinstatement of Wilcox. This case will likely return to the Supreme Court for a final decision which will help define the breadth of Presidential authority to fire the heads of the various administrative agencies under his charge. The balance of power will shift strongly in favor of the executive if the Court allows the President to treat agency heads like political appointees who work at the President’s “pleasure.”
What next?
If the nominations go through, Scott Mayer, currently Chief Labor Counsel for an aerospace company, will replace Lauren McGarity McFerran, and James Murphy, former chief counsel for former Board Member Marvin Kaplan, will replace John F. Ring. This would give Republicans firm control of the NLRB, with a balance of 3 to 1, Prouty being the only Democrat.
But the maneuvering doesn’t end here. The Republican seat of the Board Chair, Marvin Kaplan, expires at the end of next month and the second “Democratic” seat remains vacant. Based on past history, it would be expected that both seats get filled at the same time, but that may not happen. Regardless of the details, one can expect the reversal of many Biden-era decisions following the restoration of the Board’s quorum. But will it also lead to a harsher stance on unions? History says yes, but given this Administrations actions, the answer is not so clear.
Brody and Associates regularly advises management on compliance with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
