President Trump has nominated James Macy to be the newest National Labor Relations Board (NLRB or Board) member and has also renominated current Board member David Prouty (the Board’s sole Democrat) for a second term. If confirmed by the Senate, Macy would give Republicans a 3-1 working majority on the five-member Board (with one seat still open), positioning the Board to revisit and potentially reverse many pro-union/employee Biden-era decisions. A longstanding Board tradition requires three affirmative votes to overrule existing precedent. The current three-member Board (with only two Republicans) has been unwilling to revisit certain controversial cases and issues because it lacked a third affirmative vote. Macy could supply that third vote, enabling the Board to more readily establish new and overrule old precedent.

Macy is a management-side labor attorney with more than 40 years in private practice. He has also held several high-profile roles at the U.S. Department of Labor, where he currently works. His nomination will now proceed through the Senate confirmation process, which will include scrutiny of his management-side background and views on key labor issues.

If the Board has a 3-1 Republican majority, employers can expect increased willingness to revisit precedent in several key areas, including joint employment; union organizing and representation, and election procedures; union recognition and bargaining procedures; workplace rules/handbook/severance agreement standards and policies affecting employer communications; and captive-audience meetings and related employer speech issues.

Employers with pending unfair labor practice charges or representation proceedings should evaluate their legal strategies in light of potential policy shifts. Preserving existing arguments under current law while also raising (where appropriate) alternative arguments tied to anticipated precedent changes is recommended. Employers should also monitor Board decisions and general counsel guidance for near-term shifts that may affect pending litigation and compliance priorities.

Consult Taft’s Employment and Labor Relations attorneys for up-to-date guidance on this and other NLRB developments.