On December 18, by a 53-43 vote, the Senate confirmed James Murphy and Scott Mayer as Members of the National Labor Relations Board (NLRB) along with Crystal Carey to serve as the agency’s General Counsel.
The agency has operated for nearly a year without a quorum and with an Acting General Counsel, William Cowen, appointed by President Trump in early 2025.
General Counsel Carey, of New Jersey, replaces former Jennifer Abruzzo who was terminated by the President in January 2025.
Member Murphy, of Maryland, was confirmed for a term of five years expiring December 16, 2027, replacing John F. Ring, whose term expired in 2022.
Member Mayer, of Pennsylvania, was confirmed for a term of five years expiring December 16, 2029, replacing Lauren McFerran, whose term expired in 2024.
In addition to the newly confirmed members, David Prouty remains on the Board; his seat expires in 2026. The seats vacated by Marvin Kaplan’s term expiring, and Gwynne Wilcox’s unprecedented removal, which has so far been upheld by federal courts, remain unfilled.
With a quorum the Board can now resume issuing orders and decisions. NLRB members and their staff members have reportedly continued to work on cases and draft decisions despite the lack of quorum and have stated publicly that as soon as the Board is reconstituted it would almost immediately begin issuing decisions.
However, overturning Biden-era precedents will not come so fast. Traditionally, three members are required to overrule precedent. Murphy and Mayer are Republican appointees, while Prouty is a Democratic appointee, making it highly unlikely the three would issue unanimous decisions on controversial cases, particularly those decided by Prouty during the last administration. Some of the most significant issues in these cases include:
- Cemex bargaining orders
- Strict scrutiny of workplace rules, employment and separation agreements
- Restrictions on workplace investigations and confidentiality instructions
- Bans on “captive audience” meetings
- Weakening contractual management’s rights clauses
- Restrictions on employee discipline for abusive or offensive conduct during protected activity
Until the Biden-era precedent is overturned, Employers will continue to be held to its standards.
