The National Labor Relations Board (NLRB) was under pressure in 2025 due to a lack of a quorum. The Board fell to two members following Member Gwynne Wilcox’s removal in January 2025. Confirmation of two additional members, Scott Mayer and James Murphy, restored the quorum’s authority in December 2025.
The Supreme Court’s 2010 NLRB New Process Steel precedent decision became a catalyst for invalidating more than 200 rulings. However, the most recent quorum lapse comes as the political climate divides and rapid labor policy changes place employers at risk of compliance failures.
Periods without a full quorum can leave HR professionals in a difficult situation. This uncertainty particularly impacts HR’s role in navigating union negotiations, updating company policies and maintaining consistent employee relations. This guide examines the consequences of a diminishing quorum and how to prepare for 2026.
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In This Article
- How Often Do NLRB Board Members Fall Below the Threshold?
- 3 Key Periods Without a Quorum
- Why Are There Periods Without a Quorum?
- What Happens When the Board Lacks a Quorum?
- Current NLRB Board Members
- When Is the Next Quorum Risk?
- The Outlook for NLRB Quorum Requirements 2026
- Top Impacts for Employers and HR Teams
- Your Quorum HR Checklist
How Often Do NLRB Board Members Fall Below the Threshold?
It is rare for the NLRB to fall under three members. When it happens, the results are impactful. A three-member quorum is a requirement under the National Labor Relations Act to issue decisions. Without a full Board, the quorum cannot rule on cases, and all adjudicative work is suspended until a quorum is reached. The most significant quorum lapses have occurred in the past two decades.
3 Key Periods Without a Quorum
The ideal quorum size is five members, with a minimum of three required to make rulings. During periods when there are two members or fewer, the NLRB is constrained in its decision-making. Here are three key periods when a quorum lapse occurred and the consequences:
1. January 2008 to March 2010 (~27 Months)
Peter Schaumber and Wilma Liebman were the only two Board members during the 27 months without a quorum. This quorum lapse is potentially the most significant. It led to Supreme Court case New Process Steel v. NLRB, where the Court ruled that a two-member board lacked the legal authority to make binding decisions. As a result, over 500 NLRB rulings were re-litigated.
2. Various Periods Between August 2011 and August 2013
A brief quorum lapse happened after the expiration of several terms. This no-quorum involved the Supreme Court’s decision in NLRB v. Noel Canning (2014), which addressed recess appointments made by President Barack Obama in January 2012.
This decision invalidated the recess appointments, causing Board decisions between August 2011 and August 2013 to be questioned due to the absence of a properly constituted quorum. The situation came to a resolution when the Senate confirmed replacement members.
3. January 2025 to January 2026 (~1 Year)
The latest quorum lapse lasted almost one year. The Trump Administration removed Wilcox in January 2025, leading to the Board standing at two members. Despite regional offices working on complaints and cases, no national Board-level decision-making occurred.
Appointing Scott Mayer and James Murphy in December 2025 means the quorum can resume working on cases. However, the period without a quorum has created a backlog of unresolved cases. This quorum lapse has created uncertainty for HR professionals as they prepare for the future.
Why Are There Periods Without a Quorum?
Both the structure of the NLRB quorum and the number of appointments affect a quorum’s active status. Various reasons, including timing constraints, may leave the Board short of the minimum number of members needed to operate.
- Political deadlock: Traditionally, a quorum is made up of three members of the president’s party and two members of the opposing party. To preserve partisanship, the Senate confirms all nominations at one time. If political tensions prevent a deal, multiple seats can remain empty.
- Staggered five-year terms: NLRB members are required to serve a term of five years. The terms typically expire on August 27th each year, though expiration dates can vary. Seats can stay open until the Senate appoints new members.
- Member removals: It is a rare occurrence to remove a member. Depending on the number of active members, removing one member can immediately end the quorum.
The impact of an NLRB vacancy may discourage HR professionals from advancing actions during a quorum lapse.
What Happens When the Board Lacks a Quorum?
During a no-quorum period, some operations continue, while the Board suspends the most powerful actions until a full quorum resumes. For instance, imagine a company facing a unionization drive. Without a functioning Board, the process for resolving disputes or challenges to the election can be significantly delayed, leaving HR in a challenging position.
- Continuing regional activity: NLRB Regional Director authority is still in place despite the absence of a quorum. Regional Directors can investigate unfair labor practice (ULP) charges and process election petitions. Even without a quorum, HR teams and employers have an obligation to respond to investigations and petitions.
- Decisions left pending: A quorum must be present to proceed with the unfair labor practice appeals process. All cases are backlogged until the confirmation of new members. The waiting period for employers and HR teams creates uncertainty about potential decisions and may stall future planning.
- Stopping new precedent: The Board cannot make significant rulings that change labor law policy or overturn precedents from prior administrations. This limited power means HR teams and employers will find it challenging to make decisions on compliance issues, potentially delaying action until they receive guidance.
Current NLRB Board Members
As of February 2026, three members of the NLRB are active after approximately one year without a quorum. The two newest members were sworn into their roles in January 2026. Crystal Carey was made General Counsel of the NLRB at the same time. Here is an overview of the current Board members:
James Murphy
James Murphy was appointed on January 7, 2026. Beginning his NLRB career in 1974, Murphy notably served as Chief Counsel to Marvin Kaplan. He has also served as senior counsel to other Board members.
Party: Republican
Appointed by: President Donald J. Trump
Term Expiry Date: December 16, 2027
Scott Mayer
Scott Mayer was appointed on January 7, 2026. Previously, Mayer worked at The Boeing Company as Chief Labor Counsel and held other senior roles in the labor law space. Additionally, Mayer built a long career as a corporate lawyer, working at firms such as Morgan, Lewis & Bockius LLP.
Party: Republican
Appointed by: President Donald J. Trump
Term Expiry Date: December 16, 2029
David Prouty
President Joe Biden appointed David Prouty as an NLRB member on July 28, 2021. Prouty served as general counsel for the Major League Baseball Players Association and the Service Employees International Union.
Party: Democratic
Appointed by: President Joe Biden
Term Expiry Date: August 27, 2026
When Is the Next Quorum Risk?
The next quorum risk date is August 27, 2026, when Prouty’s term expires. There are currently three members, and if Prouty’s seat is not filled, the quorum will become inactive in making legally binding decisions. However, the Senate can confirm a new member before an existing member’s term ends.
The Outlook for NLRB Quorum Requirements 2026
Since the quorum’s reinstatement to make authoritative decisions, Prouty’s term expiry date at the end of the year leaves the NLRB vulnerable to instability. HR teams and employers must prepare for potential uncertainty and brisk Board decisions in 2026:
- Employer-friendly impact: Two Republican NLRB members signal an employer-friendly direction in 2026. However, after the Democratic Party seat expires in August 2026, the Board cannot make decisions unless the seat is filled.
- Clearing the backlog: A backlog of cases resulted from the quorum lapse in 2025. The NLRB is working to resolve cases before the potential quorum lapse in August. As they make quick decisions, employers and HR teams must stay alert.
- Wilcox litigation progress: A lawsuit is underway challenging the decision to remove Wilcox from the Board. Hypothetically, if Wilcox were reinstated, the Board seat would be occupied until 2028.
Top Impacts for Employers and HR Teams
During quorum lapses, the consensus is that all operations stop until the quorum has a minimum of three members. However, employers and HR teams can expect some activity at the local level despite the national limbo.
Investigations Do Not Stop
Regional Offices can still investigate ULP charges. If they find merit, they will issue a formal complaint. Because a Board without a quorum cannot rule on an appeal, cases can sit in a backlog for years. This aspect often pressures HR teams to settle cases early to avoid looming legal situations.
Power of General Counsel (GC)
The GC’s role becomes more prominent during a quorum lapse. It is their job to determine enforcement priorities and serve as a guidance point for regional agency staff.
Carey’s appointment as General Counsel in January 2026 indicates that HR teams should expect more employer-friendly enforcement. Even during a no-quorum, the GC can seek Section 10(j) injunctions against unlawful employer actions.
Ongoing Union Elections
A quorum’s absence does not affect union organizing. Regional Directors have the power to file for election and oversee votes. However, employers may face Refusal to Bargain charges if they disagree with an election, which can lead to a backlog before resolution. Typically, challenges are presented to the Board and left unresolved during a quorum lapse.
Uncertainty About HR Policy
The most significant challenge during a quorum lapse is that of HR policies. Until a quorum is restored, HR professionals must follow current standards. This uncertainty requires HR to stay extra vigilant about labor law updates and potential compliance gaps. HR must closely monitor legal interpretations and proactively communicate updates to employees. Using digital compliance tools like eComply360™ from Poster Compliance Center can make a real difference.
Your Quorum HR Checklist
A quorum lapse disrupts HR teams and employers. The checklist below addresses challenges during times of uncertainty and potential labor deadlock implications for HR in 2026:
- Check membership terms: Stay up to date on membership terms, including the expiry dates of current NLRB members. The likelihood of a quorum lapse centers around term expiry dates. Therefore, it is essential to keep board member awareness within your federal labor law enforcement updates for 2026. To stay proactive, set calendar reminders for key dates, monitor official NLRB announcements and subscribe to legal updates.
- Review regional activities: Do not assume all operations stop during a no-quorum. For example, cases such as ULP continue as normal. Maintain open communication with your regional NLRB office to stay informed about ongoing investigations, election petitions and other activities.
- Prepare for slow appeals: Anticipate potential delays if you are appealing an NLRB decision during a quorum lapse. The appeals process can be significantly slowed or halted until a quorum is restored. Explore alternative dispute resolution methods or prepare for extended waiting periods.
- Consider early settlements: In some situations, settling cases early can be a strategic move to avoid the uncertainty and potential backlogs caused by a quorum lapse. Consult with legal counsel to weigh the pros and cons of settling versus waiting for a full quorum. Factor in the potential costs of prolonged litigation and the likelihood of a favorable outcome.
- Maintain compliance: Despite the absence of a quorum, it is crucial to ensure all policies remain compliant without changes until the Board resumes. Regularly consult with legal counsel to ensure your policies align with current interpretations. eComply360™ and similar platforms support necessary compliance actions. Be prepared for potential shifts once the Board is active and closely monitor official guidance.
- Keep accurate records: Thoroughly document all investigations, charges and communications with the NLRB. Accurate records will be critical when the Board becomes fully active again, as cases will likely be reviewed and processed efficiently. Implement a thorough and accessible record-keeping system to stay ahead.
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