Articles Discussing General Labor Law Topics And The NLRA.

As a result of the federal government shutdown, the National Labor Relations Board has suspended nearly all operations and furloughed the vast majority of its staff. Nearly all Board operations, including hearings, elections, and investigations, are suspended. However, the Board will retain limited capacity to respond to unfair labor practice (ULP) charges that could cause irreparable harm to the private sector economy. Despite the shutdown, employers must still comply with bargaining obligations under the National Labor Relations Act, and charges can still be filed.

Cali Chandiramani and Scott Green wrote an article in Law360 regarding the Fifth Circuit Court of Appeals’ landmark decision in SpaceX v. NLRB

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.

President Donald Trump nominated Scott Mayer and James Murphy, a longtime National Labor Relations Board official, to fill the Board’s two vacant seats. The five-member Board has lacked a three-member quorum since January 2025, when Trump terminated former Board Member Gwynne Wilcox. Wilcox’s termination remains subject to litigation and Trump has not appointed a nominee to fill her seat. In the meantime, with only two members — Chairman Marvin Kaplan (Republican) and David Prouty (Democrat) — the Board is unable to issue decisions.

President Donald Trump is expected to nominate at least two National Labor Relations Board members in the coming months, as the five-member Board remains without a quorum to issue decisions. Shortly after Trump took office, he terminated former Board Member Gwynne Wilcox, leaving the Board short of a quorum. Trump’s nominations must be confirmed by the Senate. Trump recently nominated management-side attorney Crystal Carey as the next Board General Counsel (GC), but the Senate has not yet voted on her nomination.

By: Ninth Circuit Holds Work-Preservation Defense Available in Section 8(b)(4)(D) Jurisdictional Disputes

Sometimes employers are subject to multiple collective bargaining agreements (CBA’s) that allow different unions to perform the same work for the employer. When this issue arises, the employer cannot resolve the dispute without breaching its obligation to one of the unions. This is known as a “jurisdictional dispute,” which gives rise to one of the rare occasions under the National Labor Relations Act that an employer can bring an unfair labor practice (ULP) charge against a union.

Ninth Circuit: Kinder Morgan Controls, Work-Preservation Defense Applies

A decision by the Ninth Circuit in International Longshore and Warehouse Union v. National Labor Relations Board (NLRB) stemmed from one such dispute between two unions – the International Longshore and Warehouse Union (ILWU) and the International Association of Machinists and Aerospace Workers (IAM) – who both claimed the right under their CBA to perform certain work for SSA Terminals. Unable to resolve the dispute itself, SSA invoked section 8(b)(4)(D) of the National Labor Relations Act (NLRA), which makes it an unfair labor practice (ULP) for a union to “threaten, coerce, or restrain” an employer with the goal of forcing the employer to assign work to employees in one union over another union. When the Board finds cause to believe section 8(b)(4)(D) has been violated, it can hold a hearing to award the disputed work to one of the competing unions. After doing so, the Board assigned the work to IAM.

Refusing to accept the Board’s decision, ILWU then filed a grievance under its CBA against SSA. The Board then filed a ULP against ILWU alleging that its pursuit of the grievance was illegal. ILWU contended that its grievance was lawful under the “work preservation” defense outlined in a 2020 Ninth Circuit decision (Kinder Morgan). Under this “work preservation” doctrine, a union’s conduct is legal if it engages in “primary” activity aimed against the employer itself as opposed to “secondary” activity which is aimed at one employer with the goal of inducing that employer to take some action against a third party with whom the union has a dispute.

The Board held ILWU was not entitled to invoke this “work preservation” defense, but the Ninth Circuit disagreed, holding that, even though Kinder Morgan involved allegations of secondary activity, this defense still applied to primary activity. As a result, the Board was directed to consider the application of the “work preservation” defense in the first instance.

Practical Takeaways for Employers

The Ninth Circuit’s decision confirms that, at least within its jurisdiction, a union may assert the “work-preservation” defense in response to a charge under Section 8(b)(4)(D), even where there is no allegation of secondary activity. This marks a significant expansion of the defense beyond its traditional use under Section 8(b)(4)(B) and introduces new procedural and strategic considerations for employers navigating jurisdictional disputes. Importantly, the decision signals that a union’s post–Section 10(k) grievance activity may be protected if it satisfies a two-part test: that the objective is to preserve work traditionally performed by its members, and that the employer has the authority to assign that work. The ruling may also narrow the Board’s practical ability to enforce jurisdictional determinations, potentially leading to continued inter-union disputes and exposing employers to double liability for work already reassigned under a valid Section 10(k) order. Employers with overlapping bargaining relationships or jurisdictional exposure under multiple CBAs should consult with experienced labor counsel early in the process—particularly when responding to grievances or arbitration demands that follow a Section 10(k) ruling.

If you have questions about this decision or related labor law issues, please contact one of our experienced labor and employment CDF attorneys.

*Special thanks to CDF law clerk Ryan Kim for his research and contributions for this article.

The U.S. Supreme Court granted the Trump Administration’s application to stay former National Labor Relations Board Member Gwynne Wilcox’s reinstatement. Trump, et al. v. Wilcox, et al., No. 24A966 (May 22, 2025). The U.S. Court of Appeals for the D.C.

TakeawaysThe injunction vacates federal agencies’ memoranda exempting certain construction projects from mandatory PLA requirements.Executive Order 14063 (EO) and related Federal Acquisition Regulations requiring PLAs on large-scale federal construction projects remain in effect.Despite the injunction, the Trump Administration is likely to continue scaling back the use of PLAs on federally funded projects. Related links

U.S. Supreme Court Chief Justice John Roberts temporarily halted a U.S. Court of Appeals for the D.C. Circuit Court order reinstating National Labor Relations Board Member Gwynne Wilcox. Trump, et al. v. Wilcox, et al., No. 24A966 (Apr. 9, 2025). Following President Donald Trump’s unprecedented termination of Board Member Wilcox, the D.C. Circuit issued an en banc order reinstating her to the Board, citing the Court’s 1935 decision in Humphrey’s Executor that upheld the constitutionality of for-cause removal protections for federal agency leaders.

The National Labor Relations Board once again lacks a quorum to issue decisions. The U.S. Court of Appeals for the D.C. Circuit granted the Trump Administration’s emergency request to stay a lower court’s decision reinstating Board Member Gwynne Wilcox. Wilcox v. Trump, et al., No. 25-5057 (D.C. Cir. Mar. 28, 2025). In a 2-1 decision, the court majority ruled the Trump Administration is likely to demonstrate that President Donald Trump had authority to terminate Wilcox, finding the U.S. Supreme Court’s decision in Seila Law, 591 U.S. 197 (2020), controlling.