The NLRB Needs to Get Back to Work

As Americans were celebrating Labor Day, the federal agency charged with enforcing the nation’s principal private-sector labor law remained paralyzed.

Via its fiscal 2025 performance report, the National Labor Relations Board (NLRB) says cases awaiting action had an average age of 689 days. Pending cases increased 92% during the year, from 288 to 552. The backlog of unfair-labor-practice and representation cases awaiting NLRB decisions reached 129. This was not an accident. During the Biden years and the leadership of General Counsel Jennifer Abruzzo, Unfair Labor Practice (ULP) cases against employers were encouraged. The NLRB was more interested in giving unions leverage than finding resolution for workers and employers.

The absence of a functioning quorum under the Trump administration made addressing these issues nearly impossible, but that is little consolation to an employer or employee waiting nearly two years for the government to decide what the law requires.

With a quorum now established following the August confirmation and the swearing-in this month of President Trump’s appointees to the NLRB Board, James Macy and Scott Mayer, the NLRB can fix this. It’s time for the Trump NLRB to undo the mistakes of its Biden-era predecessors. This should also be a top priority of newly confirmed Secretary of Labor Keith Sonderling. After two years, the people are in place to turn things around at an agency that lost its way under Biden administration politics.

In September, the NLRB announced the appointment of five new administrative law judges. General Counsel Crystal Carey has also made reducing the backlog a priority, calling for a return to prompt case resolution and neutral enforcement of the National Labor Relations Act (NLRA). All positive steps. Now comes the harder part.

The NLRB should restore a basic principle of American administrative law: Its job is to act as an umpire, not as an advocate for either side in a labor dispute.

That principle was strained during the Biden administration. Abruzzo used memoranda, prosecutorial priorities and litigation positions to pursue significant changes in labor law. Her 2021 agenda identified numerous precedents for reconsideration, including rules involving employee handbooks, severance agreements, union access, protected activity and employers’ obligations to recognize and bargain with unions.

There is nothing improper about an administration having a view of labor law. Elections have consequences, and executive officials inevitably have enforcement priorities.

But there is an important difference between enforcing the law and making it. Abruzzo and Biden took it further by using administrative fiat to change rules and processes that have been to the detriment of workers and employers, with the aim of driving unionization.

The NLRB itself describes General Counsel memoranda as “policy guidance.” They aren’t statutes enacted by Congress. Nor are they regulations subjected to the Administrative Procedure Act’s notice-and-comment process.

Yet guidance can have regulatory consequences.

When the federal government’s chief labor prosecutor announces that a longstanding employment practice may violate federal law, employers can’t simply ignore the announcement. Large corporations can hire armies of labor lawyers and litigate the question. A manufacturer with 75 employees can’t afford to become a federal test case. As the old saying goes, “the process is the penalty.”

So, the prudent employer changes its behavior.

That is regulation in everything but name. This type of policymaking is antithetical to the values of American democracy.

Many Abruzzo memoranda were rescinded in February 2025, including guidance concerning noncompete agreements, severance agreements, electronic monitoring and other subjects. But rescinding the memoranda doesn’t necessarily unwind the broader legal consequences of the era. Some theories were advanced through litigation and became embedded in NLRB precedents that continue to govern employers until the Board or the courts reconsider them.

The current NLRB should conduct that reconsideration promptly.

This isn’t an argument for replacing pro-union labor law with pro-employer labor law. It is an argument for something less fashionable in Washington: neutral administration of the law Congress actually passed. And that is a far cry from the Biden-Abruzzo NLRB’s conduct.

The NLRA protects employees’ rights to organize and bargain collectively. It also protects employees’ right to refrain from those activities. Employers have obligations under the statute, and unions do too. The NLRB’s responsibility is to enforce those rules impartially.

An umpire who changes the strike zone depending on the batter isn’t much of an umpire. Neither is an umpire who takes two years to make the call.

Delay imposes real economic costs. An unresolved unfair-labor-practice charge can affect hiring, investment, collective bargaining, acquisitions and expansion decisions. Employers incur legal expenses and reserve management time for proceedings that drag on. Employees alleging genuine violations wait for relief. Unions seeking legitimate remedies wait too. Uncertainty is a regulatory cost.

It falls particularly hard on small and midsize businesses. A multinational corporation can absorb several years of administrative litigation. A family-owned manufacturer or regional construction company may postpone an expansion, decline to hire additional workers or settle a questionable claim simply because fighting Washington costs more than surrendering.

Multiply those decisions across thousands of employers and labor-law administration becomes an economic issue, not merely a legal one. The Trump NLRB therefore has two jobs.

First, clear the backlog. Establish public targets for reducing aged cases. Report how many cases have been pending six months, one year, two years and longer. Prioritize cases where delay is imposing continuing economic harm or employer-worker resolution is being delayed and gamed by the unions. Measure regional offices on timely resolution as well as enforcement activity. The Biden-Abruzzo NLRB weaponized ULP cases to give unions the upper hand against employers and workers. Now, unions hold up settlements to keep that leverage. The NLRB should use all of its tools – including unilateral settlements – to solve cases on behalf of workers and employers who rely on the law and due process to combat the disruptive tactics of the unions. Given the union propensity to favor leverage against employers over worker interests for its broader political and unionizing agenda, the NLRB needs to use its power to resolve worker-employer issues where good settlements can be achieved. The unilateral settlement approach prevents the unions from essentially having veto power and preventing resolution of a case backlog they have gratuitously created at the expense of employers and workers and to the detriment of the NLRB.

Second, restore the distinction between law and guidance. Major changes in generally applicable labor policy shouldn’t emerge through memoranda that effectively compel private parties to change their behavior before a court has ever considered the government’s theory.

If Congress wants to change the NLRA, Congress should legislate. If the NLRB has statutory authority to issue a regulation, consequential rules should ordinarily go through notice and comment. When the Board develops law through adjudication, it should respect statutory text, judicial precedent and the legitimate reliance interests of employers and workers.

There is encouraging evidence that the NLRB understands the first half of this challenge. Ms. Carey said last month that the agency has begun what she hopes will be a “permanent shift back to the fundamentals,” including prompt resolution and neutral administration of the law.

Those are the right fundamentals. The test will be whether they survive the next controversial labor dispute.

Workers need an NLRB that protects their statutory rights. Employers need one that tells them clearly and promptly what the law requires. Unions need one whose decisions carry legitimacy because they result from neutral application of the law rather than political allegiance. The American economy needs all three.

The NLRB finally has a functioning Board again. It should use the opportunity to clear its docket, unwind regulatory overreach, and get back to calling balls and strikes.