• 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.

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Transcript

[00:00:03] George Whipple: Welcome to Employment Law This Week. I’m George Whipple. Big news from the NLRB and a shakeup at the Department of Labor. Last week, Labor Secretary Lori Chavez-DeRemer resigned her post. Stepping in as Acting Secretary is Keith Sonderling, who was confirmed as Deputy Secretary in 2025.And the National Labor Relations Board could soon have a three-person Republican majority. Pending Senate confirmation, Republican James Macy will fill the vacant seat on the Board. Epstein Becker Green’s Mike Ferrell has more.

[00:00:42] Mike Ferrell: James Macy's currently at the US Department of Labor. He's been there since 2024. Before that, he spent about 40 years practicing labor law at a private firm in Milwaukee. He's been nominated to fill the vacancy that was left by former Republican Board Member Marvin Kaplan, so we've confirmed this term would run through August 27 of 2030. Significantly, he's been nominated as a package with the renomination of Democratic Board Member David Prouty, who, if reconfirmed, would have a term that runs through August of 2031.

[00:01:14] George Whipple: This packaging of the nominees bodes well for a rapid confirmation process. To maintain quorum, the Senate must confirm at least one nominee before Member Prouty's current term expires in August. Macy’s addition would mean that the Board would have both a quorum and a three-person Republican majority. This change would give the Board significantly more flexibility to pursue the priorities of the current administration.

[00:01:43] Mike Ferrell: Currently, the Board has three members, so it has enough to function, but the Republican majority there is two to one. And by tradition, which current Chairman Murphy and Member Meyer have said that they will abide by, the overturning of prior Board precedent has been done with three Board members voting to overturn the precedent and not two. This would provide a third GOP member on the Board. So, presumably, if they're aligned on those issues of overturning Board precedent, there would now be three members voting to overturn and likely Member Prouty in the dissent.

[00:02:13] George Whipple: What NLRB precedents are likely to be reconsidered if the Board has three Republican votes?

[00:02:19] Mike Ferrell: I think some that are top of mind, for example, are the captive audience, a rule from the Biden-era Board that outlawed or banned employers from holding mandatory captive audience meetings as part of a pre-election campaign. That had long been the practice that employers could hold those types of meetings.

[00:02:35] Mike Ferrell: I think that's coming back. The Cemex decision, which Member Prouty had been an author of, I think is on life support, in terms of bargaining orders from employers and setting aside and not hosting elections. Their standard for evaluating employer work rules and policies even for non-union employers, I think, is going to be looked at, the Thryv remedies that came out of the Biden Board that expanded remedies that the Board would seek beyond the traditional remedies. Those are all areas I expect this Board to look at.

[00:03:03] George Whipple: Thanks, Mike. And thank you for watching. We’ll see you next time.

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