• NLRB Nomination Signals Shifting Board Majority: The nomination of James Macy—packaged with the renomination of Democratic Member David Prouty—could give the National Labor Relations Board (“NLRB” or “Board”) a three-person Republican majority, providing the votes needed to overturn Biden-era precedents.
• Quorum Pressure Drives Confirmation Timeline: The Senate must confirm at least one nominee before Member Prouty’s term expires in August to preserve the Board’s quorum, making a swift confirmation process likely.
• Key Precedents on the Chopping Block: With a third Republican vote, the Board is expected to revisit the captive audience meeting rule, the Cemex bargaining order decision, Thryv’s expanded remedies, and standards for evaluating employer work rules.

In this episode of Employment Law This Week^®, Epstein Becker Green attorney Michael S. Ferrell discusses what a three-person Republican majority on the NLRB would mean for employers and which Biden-era precedents are most likely to be reconsidered.

Key takeaways:

• Sixth Circuit Rejects Cemex Bargaining Order: The U.S. Court of Appeals for the Sixth Circuit refused to enforce a bargaining order issued under the National Labor Relations Board’s (NLRB’s) 2023 Cemex standard.
• Cemex Remains in Effect Outside the Sixth Circuit: The NLRB continues to treat Cemex as binding policy in all other jurisdictions, leaving employers outside the Sixth Circuit’s reach exposed to bargaining orders under the standard.
• A Formal Reversal May Be Coming: With its current composition, the NLRB is widely expected to reject Cemex outright when the appropriate case arises—thereby restoring the long-standing framework requiring unions to win a representation election before gaining recognition.

For the first time in more than 10 months, the NLRB may soon have three members, reestablishing a quorum and potentially impacting employers significantly.

Epstein Becker Green attorney Corey P. Argust discusses the implications as the NLRB moves toward full operations.

The President’s nominee for General Counsel, Crystal Carey, a management-side labor attorney, is currently pending before the Senate.  She appeared before the Senate Health, Labor and Pensions Committee on July 16, 2025.  At this time William Cowen continues to serve as the agency’s Acting General Counsel at this time.

Back and Forth and Back Again

As we previously reported, on February 3, President Trump fired Wilcox from her seat on the Board, leaving only two of the Board’s five seats filled and stripping the NLRB of the quorum required by the NLRA for the Board to issue decisions, make rules, and fulfill other statutory duties.

As a result, and as noted in a statement FMCS released on March 19th, the agency announced it would examine how to apply the Executive Order in practice moving forward, specifically by ensuring “a coordinated approach to efficiency, optimization, and mission focus.” Among the immediate effects is that, on March 26, most, if not all of FMCS mediators were placed on administrative leave pending layoff, according to multiple news sources.

To say that the past fifty days have been a period of significant changes at the National Labor Relations Board (“NLRB” or “Board”) is surely an understatement. On January 27^th, the President terminated Biden appointee Jennifer Abruzzo from her role as the Board’s General Counsel and on February 3^rd appointed William Cowen, a career Board lawyer, to serve as Acting General Counsel.   

That same day, the President fired Gwynne Wilcox from her position as a Member of the Board. The firing of Wilcox left the Board without a quorum, which it must have to issue decisions and engage in rulemaking. Wilcox brought a lawsuit in the U.S. District Court for the District of Columbia challenging her termination and seeking a declaratory judgment holding that the President could not terminate a Board Member other than for cause as defined in the National Labor Relations Act (the “Act”) and seeking her immediate reinstatement to her seat on the Board. On March 6, 2025, U.S. District Judge Beryl A. Howell granted Wilcox summary judgment and ordered Board Chair Marvin Kaplan to reinstate her for the remainder of five-year term which is set to expire on August 27, 2028. So where does this leave employers, unions and anyone else who has business before the Board?

As discussed further below, employers should consider the impact of these decisions on pending cases before the Board, consider asserting affirmative and procedural defenses early and often, and stay aware of rapidly developing changes expected to take effect over the coming months.

On November 8, 2024, the NLRB issued a decision in Siren Retail Corp. d/b/a Starbucks, 373 NLRB No. 135, which overturned long-standing case law Tri-Cast, Inc., 274 NLRB 377 (1985). Under Tri-Cast, the Board held that it was lawful for employers to accurately explain that a union’s certification as the collective bargaining representative of employees would change the relationship between the employer and its employees, holding that, “there is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between the employees and employer will not be as before,” regardless of “the truth or falsity of the parties campaign statements.” Tri-Cast, 274 NLRB 377, 378 (quoting Midland National Life Insurance Co., 263 NLRB 127, 133 (1982)).