NLRB Outlook

July 2025

Overview

Recent and forthcoming developments at the National Labor Relations Board (NLRB or Board) are expected to shift the landscape of union organizing, collective bargaining negotiations, and unfair labor practice proceedings. In response, unions are likely to adopt new strategies in both organizing and bargaining efforts. This creates a new period of uncertainty for employers.

The NLRB is currently in a state of transition, with its full functionality temporarily limited due to the absence of a quorum. The NLRB currently consists of just two members, Chair Marvin Kaplan and member David Prouty. It is unclear at this time when additional members might be appointed.

While no immediate changes are being implemented, there are clear signals about the direction the Board may take once fully constituted.

Recent shifts announced by NLRB’s Acting General Counsel (GC) William Cowen, and the February 2025 recission of prior GC memoranda, suggest a rollback of aggressive enforcement strategies seen under the previous administration. Looking ahead, it is expected that the Board (once a quorum is seated) will revisit and potentially reverse several decisions. These anticipated changes are not yet actionable, but they are important to monitor.

This issue identification summary is designed to help clients stay informed about the evolving landscape. It does not offer legal advice but instead highlights key areas of potential change. Our goal is to equip clients with the awareness needed to respond appropriately as developments unfold.

Key Issues Identified

Issue 1: Election Procedures

The NLRB is expected to revisit election procedures, which would impact how union elections are conducted. Changes may include modifications to the timing, process, and standards for elections, including a reversal of speedy election rules and prohibition on “captive audience” speeches.

Issue 2: Confidentiality Restrictions

Confidentiality restrictions are likely to be a focal point for the NLRB. The Board may impose fewer limitations and restrictions on confidentiality agreements and non-disparagement provisions in agreements (such as severance agreements) with employees.

Issue 3: Standards for Protected Concerted Activity

The standards for what constitutes protected concerted activity are expected to shift. The NLRB may redefine these standards, which affect employees' rights to engage in collective activities.

Issue 4: Pursuit of Damages

The Acting GC has indicated a more restrained approach to pursuing damages when an employer commits an unfair labor practice, reserving such remedies for only the most extreme cases. The Acting GC may decline to prosecute certain issues, including those related to consequential damages. This change reflects a broader philosophical shift and suggests a more measured approach to enforcement.

Conclusion

The National Labor Relations Act remains in full effect, and employers are responsible for compliance with all existing laws and standards. While no immediate action is required, and workplace policies or procedures should not be revised based purely on speculation, employers should be aware of the changes likely to happen and prepare to adapt.

In this transitional period for the NLRB, the focus should be on monitoring Board activity and having a strategy once new rules or interpretations are issued. This is not the time for policy overhauls but for strategic awareness of anticipated shifts in Board priorities.

This issue identification brief serves as a guide to the evolving landscape, offering insight into what may come without prescribing specific actions. As the situation develops, further updates will be necessary to translate these trends into practical strategies.