On January 27, 2025, the president removed National Labor Relations Board Member Gwynne A. Wilcox, leaving the Board with only two members: Chair Marvin E. Kaplan, a Republican, and Member David M. Prouty, a Democrat. That same day, the president also removed NLRB General Counsel Jennifer Abruzzo, and on February 1, 2025, fired her successor, Acting General Counsel Jessica Rutter. To date, the White House has not designated a new acting general counsel but is widely expected to do so shortly.

This means the Board is operating without a quorum and will be limited in certain operations until a quorum is restored. Specifically, the Board cannot issue any decisions, issue regulations, or otherwise take any action that would require Board approval while it stands at only two members. The president has not yet submitted any nominations for the three open seats on the Board, and former Member Wilcox has indicated she may challenge the lawfulness of her removal prior to the expiration of her term.

The National Labor Relations Act 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, and three members of the Board shall, at all times, constitute a quorum of the Board….”  In 2011, the Board anticipated the possibility of maintaining operations without a quorum and promulgated regulations to help facilitate “the normal functioning of the Agency during periods when the number of Board members falls below three….” These regulations were adopted in the wake of the U.S. Supreme Court’s decision in New Process Steel v. NLRB, 560 U.S. 674 (2010), in which the Court held that three Board members are required to maintain a valid quorum, and the Board could not lawfully delegate its authority to a two-member Board.

The regulations promulgated by the Board provide that when a quorum is lacking, the Board continues operations as normal “to the greatest extent permitted by law.” In these cases, powers normally retained by the Board, such as the ability to rule on motions for default judgment, summary judgment, or dismissal, are granted instead to the NLRB’s chief administrative law judge (ALJ) in Washington, D.C. for ruling. Those rulings cannot be appealed directly to the Board but may be considered upon appeal by a quorum of the Board at a later date.

Requests for special permission to appeal – which are appeals made during an unfair labor practice or representation case proceeding – are likewise referred to the chief ALJ and are similarly appealable to the Board only after restoration of a quorum. Administrative and procedural requests, which include scheduling and extensions of time, are referred to the Office of the Executive Secretary and appeals of those decisions are made in a similar matter to the motions described above.

As a practical matter, until a quorum of the Board is returned and a general counsel is confirmed, Board operations regarding development of the law and new policy are effectively on hold. The lack of quorum does not, however, affect the filing of unfair labor practices charges or representation petitions, and most other day-to-day operations are expected to continue (although the authority of the Office of General Counsel to act on areas within its purview in the absence of a designated acting general counsel is not entirely clear, and employers may wish to consider challenging actions taken during this time by that office). Littler’s Workplace Policy Institute (WPI) will keep readers apprised of developments).