By: Philip Giorlando and Fred Preis
As we highlighted last month here, the National Labor Relations Board has two new members, finally providing the Board with a three-person quorum to address the massive backlog and make progress toward reversing some Biden-era precedent that overturned centuries of NLRB law.
Nearly three weeks after Senate confirmation, the National Labor Relations Board’s two new members were finally sworn in on January 7, 2026, officially resuming the agency’s operations. The delay between December 18 confirmation and January swearing-in extended the Board’s paralysis through the holidays.
The Backlog Crisis
James Murphy and Scott Mayer join Democrat David Prouty to restore the three-member quorum. Murphy revealed during confirmation hearings that over 500 cases were awaiting Board decisions—a number that grew during the additional three-week wait. For 132 days, the Board operated with just one member, unable to decide appeals from administrative law judges.
The agency still hasn’t announced who will serve as Chairman, a position vacant since August 2025. This leadership gap adds uncertainty about priorities for tackling the massive backlog.
General Counsel’s Enforcement Shift
Crystal Carey officially took control of the agency’s enforcement operations. She’s expected to issue a policy memorandum soon challenging Biden-era precedents, including Cemex’s reversal of centuries of precedent and fast-tracking union bargaining in multiple ways; expanded remedial damages against employers; and broadened protected activity standards.
Employers can expect Carey to return to traditional enforcement approaches with greater settlement flexibility at regional offices.
What’s Next: A Potential Precedent Workaround
The immediate priority is clearing the 500+ case backlog. Employers with pending cases should expect movement, though the pace remains uncertain.
Conventional wisdom suggests major policy changes must wait since the Board’s longstanding practice requires three aligned votes to overturn precedent through case adjudication. However, the Board could bypass this limitation through rulemaking, which has traditionally required only two votes.
The two Republican Board members could use rulemaking to address Biden-era policies on representation elections, mandatory workplace meetings, and independent contractor status—all without waiting for a third Republican member.
If the Board proceeds down this road of rulemaking away anti-employer Biden-era precedent, employers could see significant policy shifts sooner than expected. The choice between traditional adjudication (requiring patience) and rulemaking (enabling faster change) will define the Board’s approach through 2026.
BSW Labor and Employment Law Blog 