Top Five Labor Law Developments for August 2025

1. National Labor Relations Board Chairman Marvin Kaplan’s term ended on Aug. 27, 2025; the Board remains without a quorum. The Board is now down to a single member — Democrat David Prouty — and remains unable to issue decisions until two new appointees are confirmed. Kaplan’s departure follows two terms on the Board under both the first Trump Administration and the Biden Administration and marks a loss for the Board in the absence of his institutional knowledge. Although President Donald Trump has nominated Scott Mayer and James Murphy to fill two of the vacant seats, the Senate has not scheduled confirmation hearings, and the Board cannot act without a quorum of three members. As a result, Board decision-making is unlikely to resume before late fall, if not later.
    
2. Board Acting General Counsel (AGC) William Cowen released updated guidance on deferring unfair labor practice charges. Memorandum GC 25-10 (Aug. 7, 2025). The guidance relies on the Dubo Manufacturing Corporation and Collyer Insulated Wire cases and suggests that Regions first consider deferral to promote the “judicious use of agency resources.” Under Dubo deferral, charges are deferred if they are facially proper, timely, and have a reasonable chance of resolution through grievance-arbitration procedures. If Dubo deferral is not applicable, Collyer deferral is considered. Collyer deferral applies when the conduct is cognizable under the grievance procedure, culminates in final and binding arbitration, and the charged party waives timeliness defenses. The memo also reduces the frequency of status updates in deferred cases from four times a year to twice a year, with non-compliance potentially leading to charge dismissal. 
    
3. AGC Cowen issued a statement addressing recent state legislative efforts to regulate private sector labor relations due to the Board’s current lack of a quorum. Cowen emphasized that such state measures are likely preempted by the National Labor Relations Act and conflict with the U.S. Constitution’s Supremacy Clause. He also explained that, despite the absence of a quorum, the Board continues to operate effectively, with Regional Offices processing cases and the AGC exercising delegated litigation authority. Cowen noted that in FY 2024, the Board handled more than 23,000 cases, with less than 2 percent requiring Board decisions. Cowen’s statement reaffirms his confidence in the Board’s capacity to resume full operations once a quorum is restored.
    
4. The U.S. Court of Appeals for the Fifth Circuit affirmed district court injunctions halting Board proceedings and holding the Board’s structure is likely unconstitutional. The court held the dual layers of for-cause removal protections for both its administrative law judges and Board members violates Article II of the U.S. Constitution. The court found that subjecting employers to proceedings led by officials insulated from presidential removal causes irreparable harm and warrants immediate relief. The court rejected the Board’s jurisdictional arguments under the Norris-LaGuardia Act (which limits court jurisdiction to issue injunctions involving labor disputes) and emphasized that structural constitutional injuries are sufficient to justify injunctions. 
    
5. President Trump signed Executive Order 14343 eliminating collective bargaining rights for federal workers at additional agencies, citing national security concerns. The affected agencies include the National Aeronautics and Space Administration, the National Weather Service, the Office of the Commissioner of Patents, Patent and Trademark Office, and others with national security missions. The EO provides that certain procedural requirements in federal labor-management relations can delay agency operations and impact the agencies’ ability to implement policies swiftly, even when midterm bargaining is allowed. Legal challenges are ongoing, with a previous injunction granted on First Amendment retaliation concerns now paused by the U.S. Court of Appeals for the Ninth Circuit. 

Please contact an attorney at Jackson Lewis if you have any questions about these developments.