NLRB’s New Republican Majority: Potential Reconsideration of Biden-Era Labor Rules
Ross Serena, Contract Attorney
On August 7, 2026, the U.S. Senate confirmed Republican James Macy and reconfirmed Democratic Member David Prouty to the National Labor Relations Board (NLRB).[1] Macy joins Chair James Murphy and Member Scott Mayer, producing a 3–1 Republican majority, with one seat on the five-member Board remaining vacant. The third Republican vote is significant because Board custom generally calls for three affirmative votes to overrule existing precedent. This means the Board is newly empowered to reconsider and potentially overrule major Biden-era precedents.
Background
The NLRB had been operating with a functioning quorum of at least three members, including Member Prouty, Democrat appointee, but lacked the crucial third affirmative vote needed to reverse current Board precedent.
These confirmations come after the U.S. Supreme Court’s ruling in Trump v. Slaughter,[2] signaled that Gwen Wilcox’s legal challenge was unlikely to succeed. Former Member Wilcox, a Democrat appointee, was fired by President Trump in January 2025.
Why the New Majority Matters
The incoming majority now has the votes to reconsider Biden-era decisions addressing union recognition, employer communications during organizing campaigns, workplace rules, severance agreements, remedies, bargaining obligations, and protected concerted activity.
The change in personnel does not itself change the law. Existing precedent—including Cemex Construction Materials Pacific, LLC, Amazon.com Services LLC, Stericycle, Inc., and McLaren Macomb—remain controlling unless the Board revisits them in an appropriate case or a reviewing court alters the governing rule. Change is unlikely to be immediate as the Board continues working through existing case backlogs. In the meantime, employers are encouraged to continue complying with current NLRB precedent.
Key NLRB Precedent to Watch
Cemex Construction Materials Pacific, LLC, changed the framework for responding when a union claims majority support and requests recognition.[3] Prior to Cemex, an employer could decline to bargain with the union unless it had good-faith concerns about the union’s majority status. Employers could raise and re-raise these concerns until the election. Under Cemex, an employer generally must recognize and bargain with the union or promptly file a petition seeking an NLRB election. If the employer commits any unfair labor practice that would require setting aside the election, the employer’s petition is dismissed and, rather than re-run the election, the Board will order the employer to recognize the union.
Amazon.com Services LLC, held that an employer violates the NLRB by requiring employees, subject to discipline, to attend meetings where the employer expresses its views on unionization.[4] Under this precedent, employers may still communicate their views in lawful, noncoercive ways, including voluntary meetings with reasonable advance notice that attendance is optional, nonattendance will have no adverse consequences, and no attendance records will be kept.
Stericycle, Inc., heightened scrutiny of facially neutral handbook and workplace rules, including those dealing with confidentiality, civility, social media use, recording, solicitation, and political activity, by focusing on whether an employee could reasonably interpret a rule as restricting protected activity, subject to the employer’s justification.[5]
McLaren Macomb resurrected longstanding precedent holding that employers may not offer severance agreements that require employees to broadly waive their rights under the National Labor Relations Act; specifically, agreements that prevent employees from making statements that could disparage the employer or disclosing details of the agreement.[6]
What Employers Should Do Now·
Comply with current precedent. Do not treat expected policy changes as law before the Board or a court acts.
Refresh organizing-response plans. Identify decision-makers, escalation procedures, lawful communications, and election-petition deadlines before organizing activity begins.
Train supervisors. Reinforce rules against threats, interrogation, promises, surveillance, retaliation, and other conduct that may create unfair-labor-practice exposure.
Audit key documents. Review handbooks, workplace rules, severance and settlement templates, confidentiality provisions, and non-disparagement clauses.
Campbell Litigation’s Labor & Employment Attorneys Can Help
Campbell Litigation’s Labor & Employment attorneys will continue to monitor developments and prepare strategies to help employers navigate the gap between current NLRB requirements and anticipated policy change. Our team of experts can review and update handbooks and agreements and assist with other union-related legal matters as the Board and the courts issue new guidance.
[1] See Senate Confirmation Roll Call, https://www.senate.gov/legislative/LIS/roll_call_votes/vote1192/vote_119_2_00225.htm.
[2]25-332 Trump v. Slaughter (U.S. Jun. 29, 2026), https://www.supremecourt.gov/opinions/25pdf/25-332_qn12.pdf.
[3] 372 NLRB No. 130 (2023), https://www.nlrb.gov/news-outreach/news-story/board-issues-decision-announcing-new-framework-for-union-representation
[4] 373 NLRB No. 136 (2024), https://www.nlrb.gov/news-outreach/news-story/board-rules-captive-audience-meetings-unlawful.
[5] 372 NLRB No. 113 (2023), https://www.nlrb.gov/news-outreach/news-story/board-adopts-new-standard-for-assessing-lawfulness-of-work-rules.
[6] 372 NLRB No. 58 (2023), https://www.nlrb.gov/news-outreach/news-story/board-rules-that-employers-may-not-offer-severance-agreements-requiring, https://www.laboremployment-lawblog.com/wp-content/uploads/sites/10/2026/07/NLRB-Board-Decision-McLaren-Macomb.pdf.