Hunton Employment & Labor Perspectives

The National Labor Relations Board (“Board” or NLRB) can have up to five sitting Board members, but only three are needed for the NLRB to have a quorum. The Board had been without a quorum for most of last year but now has three sitting members thanks to two new additions last month. It marked the first time since the start of President Trump’s second term that a majority of Board members have been Republicans. This change begged the question whether the new NLRB majority would reverse controversial decisions issued by the agency during the prior administration at the first opportunity or whether the NLRB would wait until it has a three-member majority to do so.

The Board recently issued a decision indicating that it will wait for a three-member majority. In Lodi Volunteer Ambulance Rescue Squad, Inc., 374 NLRB No. 26 (Jan. 28, 2026), the Board entered a default judgment against an employer, finding that the employer committed unfair labor practices, including by unilaterally eliminating certain jobs. Id. at slip op. 2 n.2. In issuing its decision, the NLRB borrowed from the controversial decision in Thryv, Inc., 372 NLRB No. 22 (2022), requiring the employer to compensate employees for “direct or foreseeable pecuniary harms incurred as a result of their unlawful discharge . . .,” among other things. Id. at slip op. 3. In a footnote, the two-member majority found that there was “no need at this time to express an opinion whether the novel remedies announced by the Board majority in Thryv are permissible . . ..” Id. at slip op. 3 n.3. They further agreed “to apply that precedent in the absence of three-member majority to overrule it.” Id.

The decision in Thryv has been criticized for opening the door to damages that squarely fall outside the scope of the National Labor Relations Act and violating the U.S. Constitution. Three federal appellate courts already have decided that the NLRB overreached in issuing the Thryv decision, although one such court has gone another way. Compare NLRB v. Starbucks Corp., 159 F.4th 455 (6th Cir. 2025); Hiran Mgmt., Inc. v. NLRB, 157 F.4th 719 (5th Cir. 2025); NLRB v. Starbucks Corp., 125 F.4th 78 (3d Cir. 2024) with Int’l Union of Op. Eng’rs, Stationary Eng’rs, Local 39 v. NLRB, 155 F.4th 1023 (9th Cir. 2025). Other than Thryv, there are several other Board decisions that are potentially ripe for reversal, although it appears that may not happen until the majority gets a third vote. Until then, employers should consider their appellate options