Legal Perspectives on Managing Unionized Workforces®

The Bargaining Table

Home | The Bargaining Table

On July 16, President Donald Trump nominated to the National Labor Relations Board (NLRB or Board) Boeing’s chief labor counsel, Scott Mayer, and former NLRB attorney James Murphy. To be seated as Board members, Mayer and Murphy must each be confirmed in the U.S. Senate by a simple majority.

core/paragraph

As <a href="https://www.bakerlaw.com/insights/what-just-happened-the-practical-impacts-of-a-quorum-less-nlrb/" target="_blank" rel="noreferrer noopener">discussed previously</a>, the Board must have a quorum to function, meaning at least three of its five seats must be filled. The Board has lacked a quorum since Jan. 27, when Trump <a href="https://www.thebargainingtableblog.com/blogs/youre-fired-trump-takes-aim-at-the-nlrb/" target="_blank" rel="noreferrer noopener">took the unprecedented step</a> of terminating Democratic member Gwynne Wilcox, leaving only Republican Chairman Marvin Kaplan and Democratic member David Prouty. Without a quorum, the Board has been unable to conduct business or issue decisions. If either or both of Trump’s nominees are confirmed, the Board will regain a quorum with a majority Republican makeup, most likely resulting in the reversal of a number of the <a href="https://www.bakerlaw.com/insights/what-a-year-in-labor-top-10-labor-cases-and-developments-you-should-know-from-2024/" target="_blank" rel="noreferrer noopener">highly union-favorable decisions</a> issued by the Board while it consisted of a Democratic majority.

Wilcox has not taken her termination sitting down and is currently in a legal battle with the Trump administration over whether it was lawful. After multiple rounds of courts alternatively ordering Wilcox’s reinstatement and upholding her termination, the D.C. Circuit ordered her reinstated on March 6. Wilcox v. Trump, 775 F. Supp. 3d 215 (D.C. Cir. 2025). However, on April 9, Chief Justice John Roberts granted the Trump administration’s requested short-term administrative stay of the D.C. Circuit’s order, upholding Wilcox’s termination until the Supreme Court ruled on the matter. Trump v. Wilcox, 2025 WL 1063917 (Apr. 9, 2025). On May 22, the full Supreme Court formally granted the stay request, meaning Wilcox will remain off the Board while the matter is litigated. Trump v. Wilcox, 605 U.S. ____ (2025).

What happens next remains to be seen. Given the current makeup of the Senate, it is likely, though by no means certain, that both of Trump’s Board nominees will be confirmed. If and when he secures a majority on the Board, Trump could settle with Wilcox and reinstate her as the second member of a Democratic minority. It is also possible that he may break from long-standing tradition by seeking a fourth Republican Board member. In the meantime, Chairman Kaplan’s term expires this Aug. 27, so Trump may decide to renominate him to cement a majority of a fully constituted Board.

Despite the Republican majority in the Senate, Trump has faced hurdles with non-member nominees to the Board. On March 25, Trump <a href="https://www.thebargainingtableblog.com/blogs/a-new-sheriff-in-town-trump-names-his-nlrb-general-counsel/" target="_blank" rel="noreferrer noopener">nominated Crystal Carey</a>, a partner at a national management-side law firm, to be the Board’s general counsel, who is effectively its chief prosecutor and sets much of the Board’s agenda on a day-to-day basis. Carey, however, has faced headwinds in the confirmation process, with Sen. Josh Hawley, R-Mo., emerging as a strong critic.

BakerHostetler’s Labor Relations team continues to monitor developments in this area. Feel free to contact a member of the team if you have any questions.

Cleveland

The Labor Board Rises: President Trump Names Two NLRB Nominees, Meaning Potential for Quorum in Near Future