NLRB still struggling to find its footing

The reopening of the government has done little to set the National Labor Relations Board (NLRB) on a path for the future.

Board’s lack of quorum leads states to act

New NLRB General Counsel (GC) nominee Crystal Carey and new Board member nominee Scott Mayer still await confirmation.

Mayer languishes in the Senate Health, Education, Labor and Pensions (HELP) Committee, still an apparent victim of Senator Josh Hawley’s (R-MO) efforts to strike a “pro-worker” pose by opposing “captive audience” speeches, which are widely supported by Mayer and most Republicans. Until the Senate returns to regular procedure, none of the memoranda and rules published by prior GC Jennifer Abruzzo can be repealed, nor can a Board majority attempt to reverse the pro-union decisions of the Biden Board.

The lack of a quorum and the resulting inactivity, however, are creating existential issues for the Board, as New York and California—among other states—have passed legislation granting NLRB-like powers to state agencies. In New York, new legislation grants the Public Employment Relations Board authority to resolve labor disputes, enforce collective bargaining agreements, and certify unions in the private sector if the NLRB fails to assert jurisdiction.