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As 2025 draws to a close and the National Labor Relations Board (NLRB or Board) remains in flux, we have prepared a summary of some of the major Board developments from this year, as well as what to look for in 2026.
Significant NLRB Developments in 2025
On January 21, 2025, President Trump appointed Marvin Kaplan (R) as the Board’s new Chair, who immediately made his presence felt. The same day Chairman Kaplan assumed his new role, the Board issued a refreshed “outline of law and procedure” for representation (union‑certification) cases, including reinstatement of the “blocking‑charge” policy (allowing regional directors to postpone elections when unfair labor practice (ULP) charges are filed), removal of the 45‑day challenge window following a union’s voluntary recognition, and revised procedures for construction‑industry bargaining relationships.
The Board has also faced unprecedented challenges to its ability to function. Since January 27, 2025, when President Trump summarily terminated Board Member Gwynne Wilcox, the NLRB has lacked a three-member quorum. With only two members, the Board cannot issue new rulings, effectively freezing most formal Board-level activity. While Administrative Law Judges can still hear cases, and even though the Regions can still process ULP charges and issue Complaints, any appeals of ALJ decisions are currently stuck in limbo. Given the lack of quorum, there were not many decisions issued by the Board in 2025. Decisions issued while the Board lacks a quorum are likely to be challenged on that ground.
Budget and Staffing
Along with a lack of quorum, the NLRB will also likely suffer from self-inflicted budget cuts and reductions in staffing. The NLRB requested $285.2 million for Fiscal Year 2026, which represents a 4.7% cut from its budget in Fiscal Year 2025. The NLRB budget cut request includes reducing the workforce by nearly one hundred full-time positions through buyouts and early retirements. This combination of budget and staffing reductions at a time of increasing demand for labor‑law enforcement may leave the NLRB unable to fulfill its statutory mandate.
Recent Key Administrative Law Judge Decision
On December 3, 2025, an administrative law judge (“ALJ”) for the Board recently held that Amazon.com Services LLC (“Amazon”) violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by maintaining overly broad confidentiality, non-solicitation, and non-interference provisions in its nationwide employment agreements. The judge found that the agreements, which are required for all exempt and non-exempt employees as a condition of employment, contained language that a reasonable employee could interpret as restricting the exercise of their Section 7 rights, such as discussing working conditions, engaging in organizing activity, or encouraging others to support collective action. The judge emphasized that ambiguities in workplace rules are construed against the employer and that rules are unlawful if they could reasonably chill protected concerted activity. The decision focused first on Amazon’s pre-2024 confidentiality clause for exempt employees, which permitted discussion only of the employee’s own terms and conditions of employment and omitted any reference to coworkers’ conditions. The ALJ found this language unlawful. The ALJ also held that the confidentiality clause in the non-exempt employee agreement was unlawfully broad, noting that undefined terms such as “business,” “projects,” “customers,” and “legal affairs” could reasonably be read to prohibit a wide range of protected communications, including discussions with customers or public criticism of workplace issues.
The decision also struck down Amazon’s non-solicitation and non-interference provisions, which restricted employees and former employees from encouraging customers, business partners, or Amazon personnel to alter their relationships with the company. The judge concluded that these provisions could be interpreted to prohibit lawful concerted activity, including urging customers to support worker campaigns, participating in boycott efforts, or communicating with coworkers about organizing, and that Amazon did not establish a legitimate business justification warranting restrictions of this breadth. As a remedy, the ALJ ordered Amazon to rescind the unlawful provisions, to issue corrective inserts or revised agreements, and to post and distribute an NLRB notice for 60 days to employees nationwide.
What to Look for in 2026
Given the impact of the above decision on employers nationwide, it is likely that the Senate will act soon to establish a quorum. President Trump nominated Scott Mayer (chief labor counsel for Boeing) and James Murphy (former NLRB attorney and most recently Chief Counsel to Acting Chair Marvin Kaplan) to fill two of the vacant seats on the Board. If either nominee is confirmed the Board would have a quorum and be controlled by Republicans, who would more than likely overturn the Amazon decision. Crystal Carey’s (current partner at Morgan Lewis) nomination for General Counsel of the NLRB is also pending and will likely be pushed through.
What This Means for Employers
Uncertainty and delay. With the NLRB lacking a quorum and facing staffing cuts, employers can expect increased delays in union elections, ULP processing, and Board rulings. The likely delays may result in prolonged bargaining limbo, deferred enforcement, and extended vulnerability for both employers and unions.
Shifting Landscape for Union Organizing and Representation. The reinstatement of the “blocking charge” rule and removal of the 45‑day challenge window to voluntary recognition may encourage more employers to challenge organizing efforts and could delay union representation determinations.
California’s Legislative Response and What it Means for California Employers
In response to the NLRB’s inability to act at the Board level (and because of staffing and budget cuts), California enacted Assembly Bill 288 (AB 288) on September 30, 2025. Under the law, the California Public Employment Relations Board (PERB) could step in to adjudicate private-sector labor disputes, union elections, and ULP charges in circumstances where the NLRB has failed to act in a timely manner, lacks a quorum, or has otherwise “ceded jurisdiction.”
In response to this legislation, the Board’s Acting General Counsel – who remains unconstrained despite the lack of a quorum – filed suit in the U.S. District Court for the Eastern District of California to enjoin enforcement of AB 288. In that lawsuit, the Acting General Counsel contends that AB288 conflicts with the federal statutory regime under the NLRA) and impermissibly creates a “parallel enforcement mechanism.” Other states have enacted similar measures, which are also facing legal challenges along similar lines.
If AB 288 survives the Board’s legal challenge, California employers may face inconsistent or duplicative proceedings over the same dispute. This may result in inconsistent obligations and conflicting orders.
Staying on solid footing during this period of uncertainty means ensuring that any union recognition, bargaining, and ULP response policies are current, robust, user-friendly, and defensible.
JMBM’s Labor & Employment attorneys counsel businesses and management on workplace issues, helping to establish policies that address problems and reduce job-related lawsuits. We act quickly to resolve claims and aggressively defend our clients in all federal and state courts, before the Department of Labor, the NLRB, and other federal, state and local agencies, as well as in private arbitration forums. We represent employers in collective bargaining negotiations and arbitration. If you have questions or need guidance on how these changes may affect your business, please contact a JMBM attorney.
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