The U.S Senate’s August 7, 2026, confirmation of James Macy and David Prouty to the National Labor Relations Board (NLRB) has established a 3-1 Republican majority giving the Board, for the first time, the votes needed to overturn several major Biden-era labor law precedents.

With Macy joining Chairman James Murphy and Member Scott Mayer, Republicans now hold a 3-1 majority on the four-member Board, with one seat still remaining vacant, ending a period during which Republican members lacked the votes necessary to overturn major Biden-era labor law precedents. The significance of these appointments extends far beyond routine Board turnover. The new majority is expected to undertake a comprehensive review of several landmark decisions issued during the Biden administration. Certainly, near the top of that list are the Board’s 2023 decision in Cemex Construction Materials Pacific, LLC and the Board’s expansion of employees’ ability to make surreptitious workplace recordings in its 2022 Starbucks Corp. decision.

Why the New NLRB Majority Can Now Reverse Precedent

For much of the past year, Chairman Murphy and Member Mayer adhered to the Board’s longstanding practice of refraining from overturning precedent without three affirmative votes. Although the Board regained a quorum in late 2025, Republican Board Members did not possess a majority capable of reversing significant Biden-era decisions. Macy’s confirmation fundamentally changes that dynamic, even with the fifth seat still vacant.

Historically, political changes in Board composition have resulted in substantial shifts in labor policy. Because the National Labor Relations Act grants the Board wide-ranging authority to interpret and apply the Act, new majorities frequently revisit decisions issued by prior administrations. Observers expect the current majority to place greater emphasis on secret-ballot elections, employer managerial rights, workplace confidentiality, and a more flexible approach to evaluating employer policies and handbook rules.

Cemex Is a Prime Target for Reversal

The Board’s 2023 decision in Cemex Construction Materials Pacific, LLC dramatically altered the landscape of union organizing campaigns. Under Cemex, when a union presents evidence of majority support through signed authorization cards and requests recognition, an employer must either voluntarily recognize the union or promptly petition for a Board-conducted election. If the employer subsequently commits unfair labor practices that would require setting aside the election (the bar for which Cemex also lowered), the Board may issue a bargaining order requiring recognition and bargaining without a rerun election.  Alternatively, if the employer fails to timely request an election (generally within two weeks of the demand for recognition), the employer is then obligated to recognize and bargain with the union.

Employer groups have sharply criticized Cemex, arguing that it places undue emphasis on authorization cards rather than secret-ballot elections. Critics contend that the decision creates substantial risks for employers during organizing campaigns and increases the likelihood that bargaining orders will be imposed based on alleged campaign misconduct that would not have justified a bargaining order under prior Board precedent.

Many labor law observers expect the Board to revisit Cemex at the first suitable opportunity, once an appropriate case presenting those issues reaches the Board. The Board could narrow the circumstances under which bargaining orders are issued, raise the threshold for finding election-tainting misconduct, or abandon the Cemex framework altogether in favor of the more traditional election-focused standards that existed before 2023.

For unions, however, any rollback of Cemex would be substantial. Since its issuance, unions have increasingly relied on Cemex as a strategic organizing tool, especially in sectors where union organizing campaigns face staunch employer opposition. A reversal could significantly reduce union leverage and place renewed emphasis on Board-conducted secret-ballot elections as the primary path to union recognition.

The Future of Employee Workplace Recording Rights

The Board’s treatment of workplace recordings may also face renewed scrutiny. In the 2022 decision in Starbucks Corp., the Board concluded that an employee’s surreptitious recording of workplace conversations could constitute protected conduct under Section 7 of the Act, even if the conduct violated state wiretapping laws. The ruling expanded the circumstances under which employees may rely on workplace recordings to substantiate claims of coercion, retaliation, or interference with protected organizing activity.

The Board in Starbucks further suggested that blanket restrictions on employee recordings may chill employees’ exercise of Section 7 rights by limiting their ability to preserve evidence of labor law violations. In doing so, it gave substantial weight to employees’ rights to engage in this protected activity.

The new Board may have a chance to reconsider the reasoning underlying Starbucks. Employers have argued that expansive employee recording rights can undermine workplace privacy, expose confidential business information, compromise customer data, create operational challenges, and potentially expose employees and employers to liability under state laws regulating the recording of conversations without consent. The Board may seek to restore a framework that affords greater weight to legitimate employer business interests when evaluating workplace recording policies.

Other Precedents That Could Be Revisited

Beyond Cemex and Starbucks, commentators expect the new majority to scrutinize additional Biden-era rulings, including:

• Amazon.com Services LLC — the 2024 decision banning mandatory "captive audience" meetings. 
• Stericycle, Inc. — which imposed an employee-friendly standard for workplace rules and handbooks, under which even facially neutral policies could be found unlawful. 
• McLaren Macomb — which narrowed employers' ability to include confidentiality and non-disparagement clauses in severance agreements.

What Employers Should Do Now

Although the precise timing of any changes to Board law remains uncertain, employers should closely monitor cases that present opportunities for the Board to revisit these precedents. Should the new majority follow the path many commentators anticipate, the next year could bring one of the most significant shifts in labor law since 2023, restoring a more employer-friendly framework governing union elections, workplace policies, and employee recording rights.

If you have any questions, please reach out to Paul Bittner or any member of the Ice Miller Workplace Solutions team.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.