NLRB Updates
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Discussion
The National Labor Relations Board (NLRB) continues to undergo ongoing changes. Here is a brief summary of recent NLRB developments.
NLRB Uncertainty
Board Status
The NRLB continues to be in a period of flux in that it does not have a quorum on the Board in order to fully function. There are two pending nominations, Scott Mayer and James Murphy, that are before the Senate for confirmation. Their confirmation would restore a quorum, allowing the NLRB to begin issuing decisions.
NRLB Challenged
The NLRB’s adjudicative structure is currently under fire, potentially signaling future challenges to its authority. On August 19, 2025, in Space Exploration Technologies Corporation v. NLRB (“SpaceX”), the Fifth Circuit Court of Appeals upheld preliminary injunctions prohibiting the NLRB cases from proceeding against them. The court said the parties’ claims that the NLRB’s structure is unconstitutional would likely succeed on the merits, and the unconstitutionality was enough to maintain the preliminary injunctions preventing the employers from being subject to prosecution.
SpaceX and two other employers challenge the structure of the NLRB based on the limitations for removing Board members and administrative law judges (ALJ). Board Members may be removed by the President only “for neglect of duty or malfeasance in office.” ALJs may be removed only “for good cause,” as determined by the Merit Systems Protection Board (MSPB)—itself an independent, quasi-judicial agency whose members themselves enjoy for-cause removal protection by the President. The employers claim that this structure means that the Board and ALJs are unconstitutionally shielded from presidential removal, whose authority should be exercised at-will.
While this ruling only applies to the three employers in the case, it provides a roadmap for other employers to similarly challenge the NLRB, and also sets up a likely appeal to the U.S. Supreme Court.
Removing Literature from the Workplace
On July 7, 2025, in Apple, Inc. v. NLRB, the Fifth Circuit Court of Appeals said that, where an employer consistently enforced its policies requiring workplace cleanliness and prohibiting any solicitation whatsoever, the employer did not violate the National Labor Relations Act (NLRA) in removing union flyers left on a table in a break room. The employer did not otherwise interfere with unionization activity, handing out flyers outside of the store, or wearing pro-union paraphernalia.
Recording Collective Bargaining Sessions
On June 25, 2025, the NLRB General Counsel issued Memorandum 25-07 – Surreptitious Recordings of Collective-Bargaining Sessions as a Per Se Violation of the NLRA – which declares that a party who secretly records collective bargaining sessions commits a per se violation of the NLRA for failure to bargain in good faith. The Memo emphasizes, “[t]he use of surreptitious recordings during the collective-bargaining process is inconsistent with the openness and mutual trust necessary for the process to function as contemplated by the Act.” Employers should take care not to record collective bargaining sessions without the consent of all parties and should consider reporting when they are being recorded without their consent.
Salt Prosecution Guidance
On July 24, 2025, the NLRB General Counsel issued Memorandum 25-08, providing guidance on how to prosecute claims of not being hired because of known or suspected union activity, which is prohibited by the NLRA. “Salting” is “the act of a trade union in sending a union member or members to an unorganized jobsite to obtain employment and then organize the employees.” However, job applicants must be genuine, meaning they cannot apply just so as to provoke a negative response from the employer so they can file a claim. The Memo provides guidance on determining whether an applicant is “genuine” for purposes of deciding whether to prosecute a failure to hire discrimination claim. Employers should document any suspicious application activity and disruptive conduct in the interview process if they suspect that the person is just trying to elicit a job denial.
Deferring Unfair Labor Practice Cases
On August 7, 2025, the NLRB General Counsel issued Memorandum 25-09, which recommends deferral of investigations for unfair labor practice charges to the parties’ collectively bargained grievance and arbitration process, if they have one. Citing limited resources, the NLRB intends to focus on cases where the parties do not have a mutually agreed dispute resolution process in place. Further, Regions will no longer contact parties on a quarterly basis to inquire about the status of deferred cases; instead, Charging Parties are obligated to provide a deferral status report to the Region on a biannual basis – March 15 and September 15. Notwithstanding, the NLRB will retain jurisdiction over deferred cases and will review the ultimate disposition if requested by the parties.
Action Items
- Have legal counsel review current cases for potential impact from recent updates.
- Review nonsolicitation policies for neutrality and compliance and ensure consistent enforcement.
- Have appropriate personnel trained on bargaining recording requirements.
- Document applicant behavior that appears to be disingenuous.
- Review collective bargaining agreements for dispute resolution processes and evaluate with legal counsel.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2025 ManagEase