The National Labor Relations Board (NLRB) this month had two nominees to the National Labor Relations Board confirmed, securing a 3-1 Republican majority. Republican James Macy, a U.S. Department of Labor official, and Democrat David Prouty, were confirmed as part of a grouping of 74 nominations in a 51-47 vote.  

“The timing of the new NLRB confirmations is significant in that it avoids a potential ‘quorum gap,’” Ogletree Deakins wrote. The board operated with a “functioning quorum” before the latest confirmation, but the three-member Republican majority will now allow it “to overturn prior precedential decisions,” the law firm said. “Long-standing Board tradition requires at least three affirmative votes to reverse extant precedent,” per Ogletree Deakins. NLRB still has one vacancy that Trump could fill.

So, what decisions will likely be overturned? 

Workplace Rules and Handbooks: The Stericycle, Inc., 372 NLRB No. 113 (2023) case replaced the Trump-era Boeing standard which was fairly predictable with a presumption that any workplace rule is unlawful if a “reasonable” employee who is economically dependent on the employer could read it as chilling their Section 7 rights.”  By doing so, it created unpredictability in handbook policies creating a situation in which an employee could file an Unfair Labor Practice (ULP) against any handbook policy or work rule. This decision will likely be overturned and returned to a previous standard, whether the Boeing standard which is when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule or some other standard favorable to employers.   

Captive Meetings: In November 2024 in the Amazon.com Services case the NLRB held that captive meetings, where the employer can require employees, under threat of discipline, to attend meetings where the employer can present against unionization without the unions present, are illegal violating the National Labor Relations Act (NLRA). That decision overturned 75 years of precedent. That decision will likely be overturned restoring the previous precedent. Various states such as California and New Jersey tried to declare the practice illegal as well, but they were overturned as well by the federal courts on the grounds of pre-emption in the past.

Union Organizing: In the Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), the burden of filing an election petition was shifted to the employer if a union demanded recognition and created a created a framework where an employer that commits any unfair labor practice during a union campaign can be forced into a bargaining order and lose the right to a secret-ballot election entirely, effectively letting a single, minor misstep hand the union recognition outright. The Sixth Circuit Federal Court of Appeals balked at this decision and ruled against this decision.  It is likely the new NLRB will revert to previous approach of requiring a clear, specific showing that an election was so tainted it cannot produce a reliable outcome, shifting the burden back toward proof of real electoral harm rather than any technical violation. 

Severance Confidentiality Clauses: The NLRB under the previous administration ruled in McLaren Macomb, 372 NLRB No. 58 (2023) ruled that employers cannot generally include standard confidentiality and non-disparagement provisions in severance agreements as they would violate employees’ NLRA rights. The expectation is that case will be overturned by the new NLRB. 

Damages: In the Thryv, Inc., 372 NLRB No. 22 (2022) the NLRB authorized “all direct or foreseeable pecuniary harms” as a make-whole remedy, opening the door to awards for credit card interest, late fees, and even lost homes or cars supposedly tied to an unfair labor practice. This ruling overturned 90 years of precedent. Both the Fifth and Sixth Circuit Court of Appeals rejected this approach, and it is expected the NLRB will return to previous precedent.

Insubordination: The Lion Elastomers LLC, 372 NLRB No. 83 (2023) revived NLRA protection for employees’ profane, abusive, or discriminatory conduct occurring during otherwise arguably employee protected activity. For example, if an employee yells abusively at a supervisor, that action was protected questionably because other employees may be thinking the same. It is expected the NLRB will return to allowing employers to enforce neutral conduct standards when they would impose the same discipline outside the protected setting.

Unfortunately, these changes are not expected to occur overnight. Instead, they are likely to unfold gradually over the next two years. There is also uncertainty about how long these changes will remain in place once implemented. With the overturning by the U.S. Supreme Court of the Humphrey Executer standard in this year’s Slaughter case, it created a situation where every four years sitting commissioners can be fired and new commissioners more favorable to the current administration can be in charge. Therefore, employers will have to be flexible as rules could change at the will of the current administration, albeit subject to various checks like the Administrative Procedure Act and the federal courts. 

Sources: Taft Stettinius & Hollister LLP 8/12/26, HR Dive 8/10/26, Venable 6/30/26, CDF Labor Law, NLRB 12/14/2015