Labor relations watchers breathed a little easier when NLRB regained quorum. This set up now-Chair James Murphy, new member Scott Mayer, and continuing member David Prouty to hit the ground running in January, and that has been happening. The Board disposed of countless Ex-Cell-O cases after reaffirming that 1970s standard, and the three current members have been chipping away at their backlog. Yet they’ve also been “stuck” in many ways due to lacking a third GOP vote.
That’s about to change.
On April 13, President Trump nominated another member, James Macy, who has four decades of management-side labor and employment law experience under his belt. His confirmation will give the GOP a 3-1 majority, which is necessary to satisfy the Board’s tradition of reversing precedent. The door will then be open for certain Biden-era decisions to begin falling in favor of more employer-friendly versions.
Let’s look at what is likely on that table.
Organizing And Elections
Cemex Construction Materials Pacific: This aggressive Biden-era decision repudiated the Supreme Court’s 1969 Gissel ruling. It was a move meant to chill employer speech during campaigns and put employers at risk of a bargaining order over a single ULP charge. Recently, the Sixth Circuit declined to enforce a Cemex bargaining order on the grounds that the Board “exceeded its adjudicatory authority,” and the Board determined that Cemex’s timeliness rule does not apply to employers filing RM petitions. Surely, Murphy and Mayer want to make the final Cemex domino fall.
American Steel Construction: As our own Phil Wilson wrote in 2023, the Board issued this decision to “let unions cherry pick a bargaining unit out of any group of employees” and essentially rig unions’ election success by using “micro-units.” Additionally, the Board unfairly burdened employers with proving that other employees belonged in the unit.
Siren Retail Corp. d/b/a Starbucks: In this case, the Biden Board did its best to redefine employer speech by overturning 1985’s Tri-Cast, Inc. This eliminated a safe harbor allowing employers to openly discuss how unionization changes the employer-employee relationship and inform workers about the realities of union representation.
Handbooks, Severance, Discipline, And Remedies
Stericycle: This case revamped the framework employers had relied on for years with a standard that puts virtually any workplace rule at risk if it could be interpreted as an attempt to prevent protected activity. Recently, General Counsel Crystal Carey’s GC 26-03 guidance memo instructed NLRB regional offices to stop scouring entire handbooks with that goal. Yet it’s up to the Board to issue a decision to solidify that guidance.
Thryv: This groundbreaking case expanded the Board’s remedial authority well beyond traditional boundaries in favor of “make whole” remedies, which led to a standard so broad and speculative that there was no clear limit on causation. Recently in Lodi Volunteer Ambulance Rescue Squad, Murphy and Mayer refrained from weighing the legality of these remedies, but a third member will make reconsideration of this case possible.
McLaren Macomb: Earlier this month in Prime Communications, LP, Murphy and Mayer signaled that they were “open to reconsideration” of relevant Biden-era precedent in a “future appropriate proceeding.” At that time, they declined to enforce McLaren Macomb, which bans severance agreements that could be interpreted as restrictive or overly broad.
Lion Elastomers: In this case, the Board effectively told employers to tolerate certain types of misconduct if it could fall under the umbrella of protected activity. Threats and harassment that would get anyone fired on an ordinary workday became a gray area if related to a labor dispute.
Employers, The Third Vote Changes Everything
Every one of the above decisions remains enforceable law today. However, employers can expect to see significant changes for standards on micro-units, handbooks, severance agreements, and employer reactions to organizing campaigns. This process will take months, possibly years, and depend on relevant cases working their way through the NLRB’s docket. Yet the third vote is almost here.
