At the start of the Trump Presidency, management side labor law practitioners predicted that, under this administration, the federal National Labor Relations Board (NLRB) would revisit some decisions of the Biden-era NLRB to make them more employer-friendly and management oriented. Progress by the Trump administration in replacing prior Biden-era Board members has been glacial, also stalling meaningful NLRB activity.
New Nominations Signal Movement
After nearly a year and a half, by this upcoming fall 2026, employers may finally be in a position to start seeing NLRB activity that is anticipated to involve directional changes, due to the recent White House nomination of Republican James Macy and the re-nomination of Democrat David Prouty to the NLRB. If approved, they would join Chairman James Murphy and Member Scott Mayer to form a four-member Board. Member Gwynne Wilcox was fired by President Trump in January 2025.
James Macy currently serves as Director of the U.S. Department of Labor’s (“DOL”) Office of Workers’ Compensation and previously was acting head of the DOL’s Wage and Hour Division. He also formerly represented employers in Wisconsin as a lawyer for several decades—but his NLRB nomination pick surprised DC “insiders.” David Prouty is completing his first term on the NLRB and is the former General Counsel for the Major League Baseball Players union. Appointed initially by President Biden, he has been part of the Democratic majority on the Board that has issued some key decisions viewed as being more employee-friendly and as restricting employer’s rights.
Since the nominations are a “package”, it enhances the chances of fairly prompt confirmation—especially since Member Prouty’s term expires in August 2026.
Why Confirmation Matters: The Path to a Republican Majority
If both nominees are confirmed, it will give the NLRB a three Republican member majority, which could result in the Board revisiting and reversing some Biden-era Board decisions, as there will be four members. This is critical, as the Board has historically resisted reversing prior decisions without a three-member vote in support of reversal.
The Biden-era Board made significant changes to federal labor laws, reversing some cases which had been the law since the 1940s. Given this, a potential shift back to pre-Biden era positions would be impactful.
Biden-Era Decisions to Watch
One significant case that could be revisited is the Biden-era Board’s Cemex decision, which significantly shifted the election rules in a union’s favor. Most significantly, Cemex allowed a union to gain recognition without a vote if the employer was guilty of NLRB violations. Cemex created a much easier path for unions to obtain certification without a vote than the Supreme Court’s 1969 case, NLRB v. Gissel Packing Co. which required proof that an employer’s conduct constituted severe actions such as closing the facility, being organized, or firing union supporters, such that a “fair” rerun election was unlikely. Cemex does not require establishing that a fair rerun election is unlikely, only that an employer committed unfair labor practices and that the union has had a majority of the employees sign union authorization cards. While a recent decision of the U.S. Court of Appeals for the Sixth Circuit declined to apply the Cemex standard, finding it inconsistent with Supreme Court precedent, it currently remains the law the NLRB itself follows—at least until such time as the Board might overrule Cemex.
Another significant Biden-era Board decision that might be revisited is the 2024 decision in Amazon.com Services, LLC. In this case, the Board outlawed management giving captive audience speeches during election campaigns and, in doing so, reversed a 76-year-old case which held that management had a right to require employees to hear a non-threatening speech stating its opinions on unions. Other potential reversals of the Biden-era Board could come in the areas of micro bargaining units, workplace rules, severance agreements, and NLRB remedies.
The General Counsel’s Impact
Assuming both Macy and Prouty are confirmed to the Board, it will be interesting to see if Trump appointed General Counsel Crystal Cary issues a memo setting out her priorities for prosecution. She has declined to do so thus far, stating her preference to focus on reducing the backlog of NLRB cases before focusing on revisiting prior cases. The General Counsel Cary is the chief prosecutor for the NLRB and effectively sets the agenda for the Board, including by prosecuting cases that could provide opportunities for the Board to reverse Biden-era Board decisions. Therefore, her leadership will have an important impact on Board activity and future decisions.
Our labor lawyers at Lathrop GPM will continue to monitor the developments affecting the Board – and key decisions – and continue to provide ongoing updates.