What Does NLRB’s New Republican Majority Mean for Employers?

The U.S. Senate on Aug. 7 confirmed James Macy and David Prouty to the National Labor Relations Board (NLRB), establishing a 3-1 Republican majority on the currently four-member board (one seat remains vacant). This third Republican vote is noteworthy because it gives the board the numbers to begin overturning major labor precedents set during the presidential administration of Joe Biden.

Each confirmation occurred with a 51-47 vote that reflected party affiliations.

The board now consists of:

• James R. Murphy (Republican, chairman) — Term ends Dec. 16, 2027
• Scott A. Mayer (Republican) — Term ends Dec. 16, 2029
• Macy (Republican) — Term ends Aug. 27, 2030
• Prouty (Democrat) — Term ends Aug. 27, 2031

Macy brings extensive management-side labor and employment experience to the board, including service in the Department of Labor and 40-plus years in private practice representing employers in labor/employment matters.

Prouty has been a board member since 2021 and previously held senior positions with multiple labor organizations. His confirmation to a second term allows the board to maintain at least four members through August 2027, barring an unexpected vacancy. It also ensures the board will retain a Democratic representative in discussions on hot labor law issues.

Although Republican members already had a majority (on the then-three-member board), Mayer and Murphy followed the longstanding NLRB practice of not overruling precedent without the support of at least three members. With a third Republican vote now at the ready, the board may be better positioned to revisit contested labor law areas and firmly establish its doctrine and direction.

Expected Shifts and Policy Focus

The new majority is expected to review and potentially flip Biden-era standards, such as those on:

• Captive audience meetings;
• Severance agreements (with a particular focus on confidentiality and nondisparagement clauses);
• Workplace rules and handbooks;
• Employer classification (e.g., in cases of joint employment);
• Employee classification (is the worker an employee or an independent contractor?)
• Union status following the merger of two or more companies;
• Bargaining obligations;
• Protected concerted activity; and,
• Union election rules.

It’s anticipated that standards on these and others areas will either revert to a prior employer-friendly version or lead to an entirely new employer-friendly standard.

Employers, however, shouldn’t expect any immediate labor law changes stemming from the confirmations. Any changes would occur as the result of future board decisions. In the meantime, existing precedent remains the standard.

Editor’s Note: Additional Content

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