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2025: A year of tumult for the National Labor Relations Board

8/25/25

By: Robert G. Chadwick, Jr.

For an agency which has existed for 90 years, it is safe to say that the year 2025 has been the most tumultuous for the National Labor Relations Board (“NLRB”). With four months remaining on the calendar, the NLRB has already experienced: (1) the termination of a Board member without cause; (2) a lack of quorum which has stymied internal appeals for seven months; and (3) a Federal Court of Appeals opinion finding the structure of the NLRB to likely be unconstitutional.

A Primer on the NLRB

The NLRB was formed as part of the National Labor Relations Act (“NLRA”) to enforce the rights of non-supervisory employees to join together to improve their wages and working conditions, with or without a union. The NLRB is a bifurcated agency governed on one side by a five-person Board and on the other side by a General Counsel. Board Members and the General Counsel are appointed by the President with the consent of the Senate.

Although one of the functions of the NLRB is the administration of issues related to union representation, it is its role regarding alleged violations of the NLRA, otherwise known as unfair labor practices, which has been most affected in 2025. As to this role, the General Counsel investigates and prosecutes unfair labor practice cases. Administrative Law Judges (“ALJs”) hear and decide such cases, subject to review on appeal to the Board. Board decisions are not self-enforcing and the final word on such decisions is often left to federal appellate courts.   

Trump Dismisses Board Member Gwynne Wilcox

The NLRA says that the President can remove a NLRB Board Member only for “neglect of duty or malfeasance.” This provision did not stop President Trump from dismissing Board Member Gwynne Wilcox on January 27, 2025, without cause, more than three years prior to the end of her scheduled term in 2028.

Although Ms. Wilcox’s dismissal has been challenged in federal court, it has not been overturned. Indeed, the U.S. Supreme Court signaled in a May 22, 2025 Order that the dismissal may never be overturned. In that Order, Chief Justice Roberts cited the executive power vested in the President by Article II of the U.S. Constitution to remove executive officers who exercise that power on his behalf. In granting an application to stay an order compelling Ms. Wilcox’s reinstatement, Chief Justice Roberts opined: “[T]he Government faces a greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.”           

Wilcox’s Dismissal Leaves NLRB Without a Quorum

Ms. Wilcox’s dismissal left the Board with only two members, one shy of that needed for a quorum. The U.S. Supreme Court in New Process Steel v. NLRB previously held that the NLRB cannot act without a quorum. The absence of a quorum has thus stalled internal appeals of ALJ decisions in unfair labor practice cases.

Last month, President Trump nominated Scott Mayer and James Murray to be members of the NLRB, but these nominations await Senate approval. Also, the term of Board Chair Marvin Kaplan is scheduled to expire on August 27, 2025. President Trump has not announced whether Mr. Kaplan will be renominated to another term. After seven months, there is thus no timetable for when the NLRB will achieve a quorum.

Fifth Circuit Finds NLRB Structure to Likely be Unconstitutional

On August 19, 2025, the Fifth Circuit Court of Appeals again analyzed the executive power afforded the President by Article II of the U.S. Constitution. In Space Exploration Technologies Corporation v. NLRB, the specific question before the court was whether the structure of the NLRB itself violates the Constitution to the extent the President is limited in his ability to remove Board Members by the NLRA, and ALJs by the Civil Service Reform Act of 1978, which allows only for dismissal for “good cause,” as determined by the Merit Systems Protection Board. The Fifth Circuit answered this question in the affirmative.

The Fifth Circuit did not stop there. Another question before the court was whether preliminary injunctions should be affirmed halting ALJ proceedings as to pending unfair labor practice cases against three employers. The Fifth Circuit again answered this question in the affirmative. The court stated that “forcing the Employers to appear before an unconstitutionally structured agency inflicts irreparable harm.”

Takeaways for Employers

It is not an understatement to say that 2025 marks a potential sea change for the NLRB. The favorable reception of the argument that the President is constitutionally empowered to remove Board Members and ALJs may open the door to future dismissals based on unfair labor practice decisions which do not align with his views. The lack of urgency to maintain a quorum on the NLRB shows a willingness of the President to marginalize the role of the agency.

Employers should be mindful, however, that the potential sea change has limits and may only be temporary. The NLRB is still empowered to receive unfair labor practice charges by unions and employees, and the General Counsel is still empowered to investigate such charges. The Fifth Circuit opinion may not be followed in other Circuits and is subject to reversal by the U.S. Supreme Court. The NLRB may eventually achieve a quorum. Accordingly, compliance with the NLRA with the assistance of legal counsel is still strongly recommended for union and non-union employers subject to the NLRA.

For any questions or further clarification, please contact Robert Chadwick at bob.chadwick@fmglaw.com or your local FMG attorney.

 Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.