Ogletree Deakins’ Traditional Labor Relations Practice Group is pleased to announce the publication of the Summer 2026 issue of the Practical NLRB Advisor. This issue discusses the latest news from the National Labor Relations Board (NLRB) in the wake of a year-long period that the five-member Board lacked the statutorily required three-member quorum due to unfilled vacancies.
Even following this extended period when the Board did not have the authority to issue decisions, with two Board vacancies and the three current members divided 2-1 on most major issues, the NLRB could not tackle any controversial cases since three votes are typically required to overturn precedent. This situation lasted another seven months beyond January of 2026, until a fourth Board Member, James Macy, was sworn in on August 17. Thus, for over nineteen months, we have seen no significant policy developments coming from the Board.
Although the Board has largely been in hibernation for an extended period, the federal courts have been particularly active in areas that directly impact the Board. The overarching theme of these court decisions has been one of limiting the authority of federal agencies and increasing judicial scrutiny of their activity. These developments in administrative law have raised serious questions as to whether so-called “independent agencies” are constitutionally viable at all.
To date, much of the judicial re-assessment of administrative law has centered on the policy-making and administrative functions of federal agencies, boards, and commissions. Of equal and arguably greater concern and practical impact is the judicial function of many of these federal entities. The NLRB has its own complete judicial system, but in the wake of Trump v. Slaughter, it is only logical to ask if this system may not pass constitutional muster. Justice Gorsuch clearly previews this question in his concurring opinion in Slaughter in which he notes that the Court must “finish the journey [it] start[s] today” and must restore judicial power to the federal courts. This may well portend a complete re-examination of the NLRB’s system of adjudication and the administrative law theory that has delegated such authority to federal agencies. As Justice Gorsuch further noted: “We have tolerated [such] adventurous theories long enough.”
We hope you will enjoy this issue of the Practical NLRB Advisor on the latest developments at the NLRB. We will issue the next edition in the coming months. Please let us know if you have any questions.
Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Traditional Labor Relations blog.
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