On April 13, 2026, President Trump nominated James Macy to fill the third vacant Republican seat on the National Labor Relations Board (NLRB). It is unknown how long the confirmation process may take, as the last two Republican NLRB nominees took almost five months to confirm. Macy joined the DOL after more than 40 years in private practice representing employers in labor and employment matters. At the same time, current Democratic NLRB member David Prauty has been nominated by President Trump to serve a second term. Prouty had served as General Counsel for the Service Employees International Union.
If both Macy and Prouty are confirmed, the Board will not only preserve a three-member quorum but also bring about a three-member potential majority in overturning prior NLRB precedence. As of now, this has not been possible during the current Trump Administration because of the historical practice of not overturning existing precedent without a three-member majority.
Some commentators agree on what they feel will be the first NLRB precedents to be addressed and likely overturned by a new Board three-member majority. At the top of the list is probably the 2023 NLRB decision in Cemex, which required an employer within two weeks to either accept a union’s demand for recognition or file an election petition, and also required recognition if the employer commits an unfair labor practice sufficient to constitute objectionable conduct for an NLRB election. Cemex overturned 50 years of precedents.
In second place for a likely NLRB precedent to be overturned is the 2023 decision in Stericycle. This case overturned the existing standard for evaluating workplace rules in favor of a much more strict standard of finding workplace rules unlawful in circumstances where a reasonable employee could interpret the rule as coercive. The result of this ruling was to find many common workplace rules unlawful, and to put into question any discipline under such work rules.
Another rule likely to be overturned is the so-called “captive audience” ruling in Amazon. This Biden-era NLRB ruling also overturned more than 50 years of precedents in ruling that employers could not require employees to attend meetings during paid working time in which employers advocated union-free status.
There are many other similar precedents that most employers consider adverse, but these three are this writer’s “Top Picks” for being overturned in the new NLRB three-member majority.
Editor’s Note: It should be noted that in order to overturn adverse precedent, the new Board must have a case presented dealing with facts and issues that would result in an opportunity to reverse the earlier adverse precedent. Further, the current NLRB General Counsel, Crystal Carey, is currently consumed with the task of facing the backlog of cases pending before the Board. Consider that at the end of 2025, the NLRB released a report indicating that in the 2025 fiscal year, the average time to reach a determination at the end of an unfair labor practice charge investigation was about 258 days. The NLRB target is 100 days, and the rate in fiscal year 2022 was roughly 85 days. The Agency is working to expedite the resolution of cases, centralizing some work, and assigning some work from busy regional offices to less busy offices.
This article is part of our July 2026 Newsletter.
View the newsletter online
Download the newsletter as a PDF
