A newly minted quorum of the National Labor Relations Board (NLRB) has set the stage for more employer-friendly rulings with respect to the good-faith bargaining obligation between an employer and a labor organization duly selected by a unit of employees. Superficially straightforward, aspects of this bedrock principle have been litigated repeatedly over decades with varying results. Outcomes often depend on the composition of the NLRB, which tends to reflect the political party in power.
Under the second Trump administration, the NLRB had been without the required three-member quorum until December 2025, when two Republicans were confirmed. The one Democratic board member’s appointment will expire in August 2026. Although a three-member quorum allows the board to function, some commentators have noted that long-standing practice requires at least three votes to overturn precedent.
This so-called tradition, however, is not legally binding, according to Ryan Sears, an attorney with Ogletree Deakins in Washington, D.C. There is no statutory basis supporting the practice, and it potentially violates the law, said Sears, a former NLRB field attorney. Specifically, Section 3(b) of the National Labor Relations Act (NLRA) provides that a “vacancy in the board shall not impair the right of the remaining members to exercise all of the powers of the board.”
Although the three current board members have indicated that they will adhere to the three-vote rule, Republican appointee and...
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