A newly minted quorum of the National Labor Relations Board (NLRB) has set the stage for more employer-friendly rulings with respect to the good-faith bargaining obligation between an employer and a labor organization duly selected by a unit of employees. Superficially straightforward, aspects of this bedrock principle have been litigated repeatedly over decades with varying results. Outcomes often depend on the composition of the NLRB, which tends to reflect the political party in power.
Under the second Trump administration, the NLRB had been without the required three-member quorum until December 2025, when two Republicans were confirmed. The one Democratic board member’s appointment will expire in August 2026. Although a three-member quorum allows the board to function, some commentators have noted that long-standing practice requires at least three votes to overturn precedent.
This so-called tradition, however, is not legally binding, according to Ryan Sears, an attorney with Ogletree Deakins in Washington, D.C. There is no statutory basis supporting the practice, and it potentially violates the law, said Sears, a former NLRB field attorney. Specifically, Section 3(b) of the National Labor Relations Act (NLRA) provides that a “vacancy in the board shall not impair the right of the remaining members to exercise all of the powers of the board.”
Although the three current board members have indicated that they will adhere to the three-vote rule, Republican appointee and recently named NLRB Chairman James Murphy has also hinted in a bar association meeting that he might be open to deviating, Sears said. And there are other possible routes for rescinding prior rulings, he added.
So where does that leave employers hoping for some greater bargaining leverage?
Bargaining Basics
Understanding what’s currently at stake requires a grasp of the bargaining obligation. Under NLRA Section 8(d), the employer and the representative must “meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.” A refusal by either party to do so is an unfair labor practice. The bargaining obligation does not, however, compel either party to agree to a proposal or to make a concession.
Employer behavior commonly cited as evidence of bad-faith bargaining includes:
- Postponing meetings.
- Refusing to address required subjects.
- Failing to provide requested relevant information without a valid reason.
- Declaring impasse before a genuine deadlock.
New Day Dawning?
Under certain circumstances, an employer’s unilateral changes in terms and conditions of employment also may be strong evidence of bad-faith bargaining. That question — what types of routine business decisions employers can make when there is no contract in place — has been “a pain point that has oscillated for decades,” Sears said. In particular, two Biden board rulings that “fundamentally shifted bargaining leverage in the union’s favor” are tops on employers’ wish list for reconsideration, he noted.
Since 2017, the Raytheon standard — established by a Republican-dominated board — allowed unilateral changes that were similar in “kind and degree,” to previous employer practice. In 2023, however, the board reverted to a stricter standard in Wendt Corp. (bargaining for a first contract) and Tecnocap LLC (bargaining after expiration of a contract including a management rights clause). Under those rulings, employers must bargain with unions before implementing such changes, and “past practices almost never could be relied upon to justify a unilateral change,” said Sears. “That has had the effect of accelerating employers’ reaching overall agreement.”
Moreover, in 2024, the board ruled in Endurance Environmental Solutions LLC that to justify unilateral changes employers must prove that the union clearly and unmistakably waived its right to bargain over the matter. General management rights clauses do not suffice, the board held. “Historically, management rights clauses gave the employer great leverage to make midterm changes,” Sears said. Under the current standard, however, employers are well-advised to “predict and enumerate every single action [they might want to take] under a management rights clause,” he said. “Implicit understandings are likely insufficient.”
He predicted that the NLRB under President Trump will return to the “‘contract coverage’ standard,” which does not require the contract to refer expressly to the employer’s particular action and has been approved by several federal appeals courts.
Consequences of Bad Faith
If the NLRB finds that an employer has unlawfully refused to bargain or has bargained in bad faith, it will order the employer to acknowledge its obligation, and to post and electronically distribute a notice saying that it will take affirmative steps to comply. The board’s order is subject to enforcement by a federal appeals court. Such a violation also may extend the so-called “certification bar” — the normally one-year period after the union’s certification during which the employer is prohibited from challenging the union’s majority status, said Sears.
In addition to the standard remedies, the NLRB during the Biden administration pursued a variety of more onerous remedies that now are likely off the table. “Employers should expect a lot fewer extraordinary remedies,” Sears said.
Conditions such as mandatory bargaining schedules, minimum frequency, written progress reports, reading notices aloud, reimbursement of union expenses, rescission of unilateral changes, and payment of lost wages for attending bargaining meetings are “very unlikely” to be ordered under the new board, “except possibly in the most extraordinary situations.”
The even more extraordinary remedy of front pay — representing future lost wages and benefits that employees would experience as a result of an employer’s unlawful refusal to bargain — is now a dead letter. “There is no appetite for pursuing that kind of remedy,” said Sears. “Exposure to innovative monetary remedies has either gone away entirely or significantly reduced.”
Finally, Sears said, the current general counsel is “much less inclined to seek interim relief” via so-called 10(j) injunctions to force an employer to the bargaining table while an unfair labor practice charge is being litigated.
Avoid Complacency
While exposure to the harsher remedies for employer refusals to bargain has diminished, an employer still risks harm by engaging in borderline conduct.
If employer behavior provokes the union to file an unfair labor practice charge, negotiations will be delayed, unilateral changes may have to be rolled back, litigation expenses will mount up, and union activism may increase, Sears cautioned.
Margaret M. Clark, J.D., SHRM-SCP is a freelance writer in Arlington, Va.
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