Early last year while speaking to Bloomberg Law, HR Policy Association Senior Labor and Employment Counsel Roger King forecast a “lost year for substantive change” at the NLRB. That prediction turned out to be accurate with the Board lacking a quorum, i.e., at least three members as defined by New Process Steel v. NLRB, for almost a year.
The Board is now moving through its case backlog, but if you wondered how this agency would publicly begin its new era, they didn’t keep their audience waiting long. And in doing so, the Board is strategically warding off future chaos while attempting to ensure stability for federal labor law by leaning on regional directors if need be.
The Board is looking toward future challenges on regional authority
Board members James Murphy and Scott Mayer have now joined David Prouty, whose term will end on August 27. There’s no way to predict whether another Trump nominee will be confirmed by that date, which would leave the board short of a quorum again.
For now, the NLRB is forging ahead and has already issued at least 25 unpublished decisions and a first published decision, which addresses what happens if “no quorum” is a problem again.
In this newly issued decision, the Board confirmed that regional directors (RDs) have the authority to certify union election results and perform other functions related to representation cases when the Board lacks a quorum. In doing so, the Board cited Loper Bright Enterprises v. Raimondo while rejecting Satellite Healthcare’s argument that RDs lack this authority. This employers’ argument was not an isolated one, since in June 2025, “at least nine companies” made that challenge over election disputes.
The NLRB also issued a silver lining: Predictability
Granted, the “new” NLRB’s first published decision is not great news for employers who would prefer election decisions from the top, rather than from a regional office, if a quorum doesn’t exist.
Yet the Board’s first public decision aims to iron out its own structural vulnerabilities to prevent future headaches. By settling the RD delegation issue, the NLRB affirmed a method to solve some disputes even when the Board itself cannot. And if the lack of a quorum drags on again, regional labor law decisions would be preferable to an entirely paralyzed agency, which could lead to blue states trying to claim authority again.
After all, California and New York tried to create their own mini-NLRAs by asserting that their versions of a Public Employment Relations Board could settle labor disputes during the absence of a quorum. This was a test of Garmon preemption, and federal judges issued preliminary injunctions, one requested by an employer and one by the NLRB itself, against both states’ laws. The Satellite Healthcare decision could further discourage states’ shenanigans if quorum evaporates later this year.
Stability ahead? The Board sure hopes so
With this published decision, the Board is sending a clear message about its jurisdiction while warding off the uncertainty that engulfed labor law in 2025. As employers experienced last year, the absence of Board guidance is not a comforting prospect from any side of a labor dispute, and arguably, any movement toward stability is better than zero movement.
