Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—NLRB quorum lapse creates uncertainty in labor law enforcement, (Aug 11, 2025)

By Matthew Kelley of Barnes & Thornburg

Leadership changes at the National Labor Relations Board (NLRB) have contributed to a period of uncertainty for employers or management-side labor lawyers. In general, minimal changes and stability at the agency tends to promote predictability and make everyday compliance with the law much easier. During the previous administration, employers saw notable shifts across several key areas of federal labor law. So far, the current administration has not yet taken steps to revisit or adjust recent shifts in labor law, contributing to ongoing uncertainty.

The NLRB has been without a quorum—and therefore unable to issue decisions—for nearly seven months. On January 28, 2025, the current administration removed NLRB board member Gwen Wilcox. At the time of this decision, the Board was already down to three members out of five. Without a quorum, the NLRB cannot review the decisions of administrative law judges hearing cases at the regional level or modify existing legal doctrine.

The absence of a functioning NLRB has left businesses grappling with many labor-friendly decisions that would otherwise be on the chopping block. While two new board members have been nominated—Scott Mayer, chief labor counsel at Boeing, and James Murphy, a career lawyer at the NLRB—new decisions will not be issued until those members are confirmed by the Senate. In the meantime, federal labor law continues to be shaped at the regional level, where judges are bound by current precedent. One recent case highlights this ongoing challenge for employers.

In 2023, the NLRB significantly revised long-standing precedent with its decision in Cemex Construction Materials Pacific, creating a new standard for employer recognition of unions. Under this framework, if an employer commits an unfair labor practice (ULP) after a union demands recognition based on majority support—but before a valid secret-ballot election takes place—that misconduct may trigger a bargaining order, regardless of the severity of the violation.

Although most bargaining orders issued under Cemex to date have involved conduct that might also have justified an order under the earlier Gissel standard, the possibility of such orders being issued for less severe or more technical violations has created heightened uncertainty for employers. There are five pending appeals before the NLRB that could be used to alter or overrule the Cemex decision. With no functioning NLRB to revisit or refine the standard, it remains a binding precedent in regional proceedings, where administrative law judges continue to apply it.

A recent case involving a petition at an Arizona sporting-goods store illustrates these concerns. There, the employees voted 18-5 against unionization, but after the union filed charges, the administrative law judge overturned the election and agreed that a bargaining order was appropriate. "The respondent's multiple unfair labor practices during the critical period, particularly its threats to close the facility if the employees unionized, which are among the most flagrant of possible unfair labor practices, support setting aside the election," the judge wrote. Between the store's filing of the election petition and the representation vote, one manager unlawfully claimed that the union would "cause the store to close down."

While the judge found several violations, the case also raised a nuanced question about the Cemex framework: the union had not formally demanded recognition before filing its petition. Nonetheless, the judge concluded that a bargaining order was still appropriate under Cemex, interpreting the demand requirement flexibly. To reinforce the outcome, the judge also found a bargaining order could be issued under the U.S. Supreme Court's 1969 opinion in NLRB v. Gissel Packing Co. Inc.

This case underscores how technical, fact-sensitive issues continue to shape labor law at the regional level in the absence of a functioning Board. Until the Senate confirms new members and the NLRB regains a quorum, employers and labor practitioners alike will remain in a state of uncertainty. A fully constituted Board could bring clarity—potentially sooner rather than later.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Matthew Kelley

Barnes & Thornburg

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