Additional NLRB member opens door to reverse union-friendly decisions

The addition of a fourth member of the National Labor Relations Board (NLRB) provides the additional vote necessary to overturn union-friendly decisions issued during the Biden administration.

Earlier this month, the US Senate confirmed the appointment of James Macy, a Republican, to fill one of two vacant Board seats, and reconfirmed current member David Prouty to a second term. Prouty is the Board’s only Democratic member. Macy’s confirmation gives the Board four members and a 3 – 1 Republican majority.

Under long-standing Board custom, it takes three affirmative votes to overturn precedent. Since the NLRB regained a 2 – 1 quorum in January, the two Republicans members have included footnotes in decisions, flagging precedents that they would review to reverse or modify. Macy was sworn in as a Board member on August 17, 2026.

Board Rulings to Watch

Decisions that could be reversed include:

• McLaren McComb – Under this decision, merely offering a severance agreement whose confidentiality or nondisparagement clauses broadly restrict employees from discussing the employer, their employment or the terms of the agreement itself violates the NLRA, regardless of whether the employee signs it.

• Cemex Construction Materials Pacific, LLC – This 2023 decision made it much easier for unions to organize and employers to oppose unionization. Under Cemex, employers that do not voluntarily recognize a union when presented evidence of majority support must promptly file a petition for a secret ballot election within 14 days. Any unfair labor act committed by the employer during the election process, no matter the level of severity, can result in a bargaining order.

• Stericycle, Inc. – This early Biden administration ruling makes workplace rules and handbook policies, even if facially neutral, presumptively unlawful if a “reasonable employee” could interpret them as chilling NLRA protected activity. Employers must show that a rule protects a valid employer interest and a less restrictive rule will not work.

• Amazon.com Services – Under this decision, an employer violates the NLRA when it requires employees, under threat of discipline or discharge, to attend a “captive audience meeting” where the employer expresses its views on unionization.

• Thryv, Inc. – The 2022 Thryv decision authorized NLRA make-whole remedies to cover “consequential damages” (i.e., all direct and foreseeable economic harm caused by an unfair labor practice, such as uncovered medical expenses due to loss of health insurance) rather than the traditional “make whole” remedies, not just back pay.