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Labor & Employment Principal Meredith Kirshenbaum is quoted in "NLRB Cases Stuck Waiting for Remedy After Member’s Firing," an article published in the March 3, 2025, edition of Law360 Employment Authority.
The article concerns the lack of a quorum on the National Labor Relations Board and how it has created a backlog at a pivotal point in representation and unfair labor practice disputes. Democratic member Gwynne Wilcox was fired in late January 2025, and the board's two remaining members have since been unable to validate unions' election wins or decide appeals of judges' decisions. This is making the already weakened agency an even less effective tool for unions, and the administration has given no sign it intends to promptly fill the board's vacancies.
President Trump fired Wilcox, who was appointed by former President Joe Biden, in an unprecedented move testing his constitutional power to remove federal officials. That has left the five-member panel with two members: Marvin Kaplan, the Republican chairman, and Democratic member David Prouty.
Wilcox has filed a challenge and may soon win interim reinstatement.
Since the firing of Wilcox, the board has been unable to issue decisions. It cannot sign off on union representation elections — a step that adds force to employers' obligations to bargain — or issue unfair labor practice findings and remedies that it can then petition appeals courts to enforce.
The agency's pace has been slow in recent years — owing to its surging caseload and shrinking workforce — and the lack of a quorum creates further delays. According to data obtained by Law360, as of Feb. 27, 2025, 329 matters were awaiting the board's input. That number will grow as agency judges decide unfair labor practice complaints and regional directors opine on election disputes.
While the NLRB's regional offices have continued to hold elections and issue preliminary certifications of their results, the board has been unable to resolve employers' objections to elections or rule that employers that refuse to deal with certified unions have violated their bargaining obligations. Workers and unions have been left in limbo when employers fight election results, delaying contractual gains or even thwarting them altogether if workers sour on their unions during periods of delay.
And on the unfair labor practice side, as cases languish before an inert NLRB, case timelines that already routinely extend more than a year from inception to ruling will expand.
"I'm not sure it behooves anyone to keep the NLRB without a quorum indefinitely ... until there's a quorum, case law can't get overturned."
Normally only a fraction of cases reach the board, with the vast majority of viable cases settling well before that point. But if the board can't rule, employers may be less apt to settle, particularly when they don't have collegial relationships with the charging union.
Meredith says that unions' concerns under Trump are apparent. She's already seen a noticeable change in their faith in NLRB litigation.
Unions were quick to litigate under Biden, bolstered by former general counsel Jennifer Abruzzo's aggressive advocacy for workers and the Democratic board majority's broad views on labor rights. Abruzzo has since been replaced with an acting general counsel viewed as a more moderate prosecutor, and the board is expected to reverse union-friendly precedents when Republicans regain control. Add in the uncertainty over when the board will have a majority with the power to resolve cases, and unfair labor practice charges aren't the threat they were a few months ago.
"For some ULPs, I think the unions really kind of held those up as, 'Oh, when we get the ruling, you're going to have to do XYZ thing,'" Meredith said. But now, unions recognize that their claims won't carry the leverage they did under the last administration, she said.
Employers may see an uptick in concerted actions, including strikes, as the board becomes a less effective tool for unions, Meredith added. At the same time, unions may hesitate to take action if they see the board as an unfavorable or ineffective forum for litigating fallout, she said.
And while unions may feel in a bind without a fully functional labor board, employers aren't content with the status quo, either.
"I'm not sure it behooves anyone to keep the NLRB without a quorum indefinitely because there's bad case law [for employers] out there right now," Meredith said, adding, "and until there's a quorum, case law can't get overturned."
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