Rulemaking could alter the NLRB’s timeline for revising labor law and policy in 2026.
After nearly a year without a quorum, the National Labor Relations Board is moving again, with Crystal Carey sworn in as the new General Counsel, along with James Murphy and Scott Mayer joining the Board.
With a Republican majority restored, the real question is no longer whether Biden-era labor policy will be revisited. It is the speed with which the Board chooses to act.
Much of the coverage has described 2025 as a lost year for the agency. Decisions stalled. Backlogs grew. Meaningful policy progress has largely stalled. That assessment is fair.
What comes next is where the picture shifts.
The Board is poised to make major policy changes in 2026, with several Biden-era decisions expected to be reversed or substantially narrowed under the new Trump-appointed majority.
The Pendulum Has Always Swung. This Time Is No Different.
The NLRB has long operated as a pendulum agency. Changes in political control bring changes in Board law and precedent. That is not a breakdown in the system. It is how federal labor law has evolved for decades.
What makes this moment stand out is the scope of doctrinal change under the Biden Board and how directly those changes affected everyday employer decision-making.
Several high-profile rulings and issues now sit squarely in the Board’s sights.
Stericycle, Inc.
Stericycle flipped the script on handbook rules, treating ordinary workplace policies as guilty until proven innocent. Even facially neutral standards suddenly carried legal risk unless employers could show they posed no conceivable deterrent to protected activity. Most observers expect that approach to give way to a more practical test, one that asks what a reasonable employer would adopt to run a workplace, not what might hypothetically unsettle an organizer.
Cemex Construction Materials
Cemex rewired the recognition process by allowing unions to secure bargaining rights without an election if an employer declined card-check recognition and then committed an unfair labor practice. The decision is broadly viewed as the Biden Board’s most aggressive expansion of union leverage and a prime candidate for reversal.
Lion Elastomers
Lion Elastomers blurred the line between protected activity and punishable misconduct. Employers were told to tolerate behavior they had previously addressed, so long as it occurred under the banner of protected activity. Many expect the Board to redraw those lines and restore clearer discipline boundaries.
Captive Audience Meetings
Limits on required employer meetings about union issues are likely to be revisited, with a return to the long-standing view that employers may communicate their perspectives under Section 8(c) without violating the Act.
Beyond individual cases, reporting and analyst commentary point to movement in several broader areas:
- Joint Employer Status
The Biden Board’s 2023 joint-employer framework is on borrowed time. A return to the narrower 2020 standard would raise the threshold for shared liability and rein in the reach of joint-employer findings. - Decertification Elections
Rules that tilted the field against employees seeking to remove a union are likely to be rolled back. Expect less reliance on blocking charges and fewer procedural barriers to decertification votes. - Section 7 Interpretations
Expansive readings of protected concerted activity are poised for contraction. Narrower interpretations would reduce the range of employee speech and conduct claims treated as automatically protected.
Why the Board May Move Sooner Than Many Expect
Some observers argue that meaningful change must wait until a fully constituted five-member Board is in place. That assumption is increasingly shaky.
With a three-member quorum restored, the Board can already issue decisions. More importantly, it can also pursue rulemaking, which requires only a majority vote of a quorum.
As former NLRB Chair Marvin Kaplan has noted in a Bloomberg article, rulemaking allows the Board to revise policy prospectively, with notice, public comment, and the procedural safeguards required by the Administrative Procedure Act. It is slower than adjudication but more durable, and it does not require five members to begin.
That matters because many of the most controversial Biden-era changes, particularly those affecting representation procedures and employer speech, are better suited to rulemaking than to case-by-case litigation.
What This Means on the Ground
Momentum should not be mistaken for immediacy.
Cemex, Stericycle, and Lion Elastomers still control today’s landscape. Employers should assume full enforcement and act accordingly. Supervisor training, discipline, handbook drafting, and responses to organizing must continue to reflect these standards.
But the trajectory is no longer subtle. Expect fewer constraints on employer speech, clearer handbook rules, and a renewed preference for elections over card-based recognition.
The real risk is assuming stability. This is a period of movement, not equilibrium. And the timeline has accelerated. Change is no longer a distant possibility.
Through adjudication and rulemaking, the Board now has multiple paths to unwind or recalibrate policy, which should begin soon.
That is the reality of a pendulum agency back in motion.
