- National Labor Relations Board Chairman Marvin Kaplan's
term ended on Aug. 27, 2025; the Board remains without a
quorum. The Board is now down to a single member —
Democrat David Prouty — and remains unable to issue decisions
until two new appointees are confirmed. Kaplan's departure
follows two terms on the Board under both the first Trump
Administration and the Biden Administration and marks a loss for
the Board in the absence of his institutional knowledge. Although
President Donald Trump has nominated Scott Mayer and James Murphy
to fill two of the vacant seats, the Senate has not scheduled
confirmation hearings, and the Board cannot act without a quorum of
three members. As a result, Board decision-making is unlikely to
resume before late fall, if not later.
- Board Acting General Counsel (AGC) William Cowen released
updated guidance on deferring unfair labor practice charges.
Memorandum GC 25-10 (Aug. 7, 2025). The
guidance relies on the Dubo Manufacturing Corporation and
Collyer Insulated Wire cases and suggests that Regions
first consider deferral to promote the "judicious use of
agency resources." Under Dubo deferral, charges are
deferred if they are facially proper, timely, and have a reasonable
chance of resolution through grievance-arbitration procedures. If
Dubo deferral is not applicable, Collyer deferral
is considered. Collyer deferral applies when the conduct
is cognizable under the grievance procedure, culminates in final
and binding arbitration, and the charged party waives timeliness
defenses. The memo also reduces the frequency of status updates in
deferred cases from four times a year to twice a year, with
non-compliance potentially leading to charge dismissal.
- AGC Cowen issued a statement addressing recent state legislative efforts to
regulate private sector labor relations due to the Board's
current lack of a quorum. Cowen emphasized that such state
measures are likely preempted by the National Labor Relations Act
and conflict with the U.S. Constitution's Supremacy Clause. He
also explained that, despite the absence of a quorum, the Board
continues to operate effectively, with Regional Offices processing
cases and the AGC exercising delegated litigation authority. Cowen
noted that in FY 2024, the Board handled more than 23,000 cases,
with less than 2 percent requiring Board decisions. Cowen's
statement reaffirms his confidence in the Board's capacity to
resume full operations once a quorum is restored.
- The U.S. Court of Appeals for the Fifth Circuit affirmed
district court injunctions halting Board proceedings and holding
the Board's structure is likely unconstitutional. The
court held the dual layers of for-cause removal protections for
both its administrative law judges and Board members violates
Article II of the U.S. Constitution. The court found that
subjecting employers to proceedings led by officials insulated from
presidential removal causes irreparable harm and warrants immediate
relief. The court rejected the Board's jurisdictional arguments
under the Norris-LaGuardia Act (which limits court jurisdiction to
issue injunctions involving labor disputes) and emphasized that
structural constitutional injuries are sufficient to justify
injunctions.
- President Trump signed Executive Order 14343 eliminating collective bargaining rights for federal workers at additional agencies, citing national security concerns. The affected agencies include the National Aeronautics and Space Administration, the National Weather Service, the Office of the Commissioner of Patents, Patent and Trademark Office, and others with national security missions. The EO provides that certain procedural requirements in federal labor-management relations can delay agency operations and impact the agencies' ability to implement policies swiftly, even when midterm bargaining is allowed. Legal challenges are ongoing, with a previous injunction granted on First Amendment retaliation concerns now paused by the U.S. Court of Appeals for the Ninth Circuit.
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