What happened?

As a reminder for employers nationwide, recent U.S. Senate confirmations restored the National Labor Relations Board’s (NLRB) quorum and confirmed a new General Counsel. The confirmations occurred on December 18, 2025, with the officials sworn in on January 7, 2026, allowing the Board to resume full adjudicatory and enforcement operations.

The National Labor Relations Board (NLRB) requires a three-member quorum from its five-member board to legally issue decisions, conduct hearings, and hold elections. Without three members, the Board cannot function, halting official actions and delaying case decisions.

Overview

• The Board had been largely inoperable since early 2025 due to vacancies following term expirations and the removal of a Board member and the prior General Counsel. Courts allowed those removals to take effect, although related constitutional challenges remain ongoing.

• During the lapse, NLRB regional offices continued investigating some unfair‑labor‑practice (ULP) charges and conducting elections, but the Board could not issue final decisions.

• With the confirmations, the Board now consists of two Republican members and one Democratic member (Chair David Prouty), restoring the statutory quorum needed to issue decisions and advance enforcement actions.

Why this matters:

• Operations restart: The NLRB can again decide election objections, issue decisions in ULP cases, and approve certain litigation steps (e.g., injunction requests).

• Rulemaking may resume: Potential topics include worker classification, representation procedures, and campaign speech.

• Precedent likely holds (for now): Under longstanding practice, the Board generally needs three members to overrule precedent; with a 2–1 split, major Biden‑era precedents are unlikely to be overturned immediately.

• Judicial developments continue: Federal appellate courts are actively considering challenges to the Board’s structure and authority, which may drive further changes over the coming months.

Action Steps for Compliance

• Prepare for General Counsel guidance memoranda: Be ready to align investigations, responses, and training with stated enforcement priorities.

• Monitor  rulemakings and litigation outcomes: Assign ownership to monitor developments and update handbooks, supervisor training, and labor‑relations playbooks accordingly.

• Employers should compare and contrast their meeting policies applicable to this subject by reviewing the NLRB’s position on the subject here: NLRB – Captive Audience Meetings.

Key Risks for Employers

• Renewed enforcement and backlog review may increase investigations, complaints, and litigation activity.

• Existing precedents remain in place until (and unless) a three‑member majority moves to narrow or overturn them.

• Expanded remedies and stricter scrutiny in priority areas could raise exposure in ULP cases.

• Ongoing court challenges regarding removal protections for Board members and Administrative Law Judges (ALJs) may create continued procedural uncertainty.

Source References

• Congress – Senate Resolution (S.Res) 532 – An executive resolution authorizing the en bloc consideration in Executive Session of certain nominations on the Executive Calendar
• NLRB Quorum Announcement

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