Labor Law Solutions, The Podcast: A New NLRB Board Takes Shape

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Tom Davis: If you’ve been looking for a source to find cutting-edge updates on the National Labor Relations Board and to find out what’s happening in the labor space generally, we certainly hope this podcast is going to be your go-to resource going forward. This is Labor Law Solutions, The Podcast. This is our inaugural effort. Welcome. I’m Tom Davis. I’m one of your co-hosts for this podcast. And hopefully most of you will recognize the Labor Law Solutions brand, or as we refer to it around here, LLS.

For about 15 years now, the traditional labor practice group at Ogletree has been presenting an annual, or frankly for a while, it was twice a year, seminar on developments at the National Labor Relations Board and with organized labor. Look, I’m biased. I believe Labor Law Solutions is the most sophisticated, the most cutting edge. And I think most importantly, the most effective at skill building seminar available on all topics of interest to management labor professionals.

Our next Labor Law Solutions program will be in beautiful Austin, Texas at the JW Marriott. That’s on December 2 through 4 of 2026. If you do nothing else after listening to this podcast, go register because we’re pretty sure this year will be another sellout, just like the last three or four have been. But to explain why we’re doing this podcast, we really felt like only seeing you, our participants, once a year was not enough. So, we’ve decided to create more opportunities throughout the year to provide updates as part of what you get with Labor Law Solutions and to bring this community together. Isn’t that right, Tom Stanek?

Tom Stanek: You know, it is, Tom Davis, and I’m really happy to be here today. For everyone, my name is Tom Stanek. I’m a co-host of Labor Law Solutions, The Podcast. Tom Davis and I are co-chairs of our practice group, and we really wanted to do something with this podcast to build upon the Labor Law Solutions brand, and really the network of participants that created this entire seminar, this fan base, this entire kind of community to talk about traditional labor issues. And we thought it’d be really a great thing to have more opportunities to get together as a group and have this podcast as an opportunity for us to kind of keep that momentum going throughout the year. So at least once a quarter, and our goal is certainly by the last week of the quarter, Tom and I will post a podcast discussing key developments in the traditional labor space over the prior three months.

We may do more frequent podcasts. We may post things more regularly in response to critical developments that may happen kind of off cycle with our cadence of podcasts, but at least a few times a year, you will hear from us with the latest and greatest developments in traditional labor law issues affecting employers.

This upcoming December, as Tom was indicating, we will be in Austin, Texas. We hope many of you are able to join us. And we also plan to record our Q4 of 2026 episode of Labor Law Solutions, The Podcast in Austin, Texas at Labor Law Solutions, the seminar. We’ll summarize our sessions. We’re going to keep all of you up to date on key highlights from the program at Labor Law Solutions. We will probably have somewhere north of 15 or 20 sessions on cutting edge labor law issues. So, we really want to make sure that we capture all of that, and we’ll have that podcast out to you after Labor Law Solutions the seminar takes place in Austin.

However, it’s always better to be there in person. So please register early if you’re interested in joining us in person at Labor Law Solutions, the seminar. It is in December. It’ll be here before we know it. It will likely be another sellout, so we do hope that you register early, and we hope to see you there. In the meantime, we will make sure that we have these podcasts released to keep that momentum going, as I was saying. And if you have topics that you’d like us to address on our LLS, Labor Law Solutions, The Podcast, we’d love to hear from you and have that stuff covered. Which I think, Tom, brings us to the body of today’s episode, right?

Tom Davis: Which brings us to today’s episode after nearly a year of inactivity at the NLRB in Washington. As of January 2026, we finally have three members on the NLRB quorum, a Trump 2 NLRB, I guess, and we have a Trump general counsel in place. So, there is now movement, but perhaps more accurately, the potential for some movement away from all those troubling Biden board years and Biden board decisions that were so anti-management and so pro-labor.
And I have to tell you, no one’s better placed to opine, in the words of us lawyers, on topics, those topics than our guest today, Brian Hayes. Brian’s a co-chair of our Ogletree Traditional Labor Practice Group. He’s a shareholder in our Washington, D.C. office, but before he joined us, he was a member of the NLRB. So, he knows its workings inside and out. Brian is, and I say this respectfully, a true Washington, D.C. insider, but when it comes to the National Labor Relations Board, he truly is in the room when decisions are being made about what’s going to happen at the Labor Board and who’s going to join the Labor Board and with labor law more generally. So, Brian, we’re excited to have you, welcome.

Brian Hayes: Thank you, Tom. And thank you, Tom. It’s good to be with you both.

Tom Stanek: So, Brian, let me go ahead and get this started. We want to kind of get to the crux of the issue where the rubber meets the road, and that’s really with the board itself. So as of this January, we have a quorum for the first time in over a year. Perhaps, if you could, for our audience, share a little bit about the new board members. What have they done since the new year began? What have they not tackled yet? And what types of things do we believe they’ll be able to accomplish still during the 2026 calendar year?

Brian Hayes: There are two slots have been filled. The first by Jim Murphy, who is a longtime board employee. He was chief counsel to three different Republican board members, myself included. He’s a terrific lawyer and a very practical kind of reader of the National Labor Relations Act. So, I think he’s going to be extraordinarily beneficial in terms of trying to straighten out the current state of the law.

The other seat is filled by Scott Mayer, who is also a longtime practitioner, both in the private sector and in-house. He too is a very experienced labor lawyer and someone who brings, I think, a good deal of practicality to the interpretation of the statute. So, I think we’re going to see a lot more reasonable and rational decision-making out of the board than we have in the past. In terms of what they’re doing, I mean, I think that the first thing that they’re trying to get their arms around is that the board at the board level in Washington now has probably one of the biggest case backlogs that it’s ever had in the history of the act.

So, they’re going to try as best they can to sort through and cut down that backlog, which is in the hundreds of cases at this point, which means I think what we’re seeing now and what we’re likely to see for a while going forward is that they’re going to go after the kind of low hanging fruit, if you will, the easier decisions to get out, decisions that aren’t particularly groundbreaking.
In terms of their ability to address some of the really problematic cases and decisions that came out of the Biden board, there’s a problem with that that we’ll talk about, I guess, at some length today. And that is that, by tradition anyway, the board does not disturb extant precedent unless it has three affirmative votes to do so.

Now, if you look at most of these problematic cases out of the Biden board, one of the participants in the majority in those cases was David Prouty who remains on the board. So obviously they’re not going to get three votes with just Murphy and Mayer deciding one way and Prouty the other way. So, it’s going to be very difficult to jettison or overrule those cases as long as both Murphy and Mayer adhere to the tradition at the board.

Tom Stanek: So, Brian, let me ask this. It sounds like perhaps some of the more troubling cases from the last board, the Biden board that were very pro-union may remain in place for several more months. But the question I guess I have for our audience is David Prouty’s seat, I believe, expires in just about five months of the day in August of this year. If his seat expires, or if his term expires, we will lose the third member of the board. We will not have a quorum any longer, but have you heard anything about that vacant seat? So, we’ll talk in a while about Ms. Wilcox’s seat and what that may mean, but there was a vacant seat that still is in place. I was just curious if you could share any thoughts you may have on what we might see before August, perhaps with a new member of the board joining the board, perhaps in August, what the future of Mr. Prouty and his term with the NLRB may look like after August.

Brian Hayes: Yeah. We had been hopeful that the White House would act faster than they have thus far indicated they are willing to act. And to get that, they call it the fourth seat, that fourth seat filled with someone. It’s now gotten to the point where it’s stretched out long enough now that I think what your question suggests, Tom, maybe the way the White House is thinking, and that is when David Prouty’s seat comes up in August, perhaps the easiest thing to do in terms of trying to get names through the Senate is to pair him with a Republican nominee to fill that fourth seat. So, they would have two vacancies filled in August.

That seems at this point to be the most likely scenario. I do know that the White House has at least three and possibly four names that they are currently in the process of vetting, but they haven’t proceeded to send any of those names up to the Senate at this point. So, it seems to me that it’s probably going to stretch out until August, when one of those nominees winds up being paired with Dave Prouty. That’s my best guess.

Tom Stanek: So would it be fair, Brian, to suggest then for our audience that until August, don’t expect any seismic changes in terms of overruling existing extant precedent at the board, but perhaps following August and whatever the package may look like for a fourth board member who’d be more management friendly, perhaps with a package with Mr. Prouty getting an additional term, we might start to see at that point three members in the majority who would be more inclined to overrule some of that more troubling precedent from the Biden years.

Brian Hayes: I think, Tom, that’s the most likely scenario at this point. Both Mayer and Murphy have said publicly and also in their confirmation testimony that they intended to adhere to the board tradition of not reversing extant precedent without that additional vote. I think they will probably adhere to that, which means just by simple math, those troubling cases aren’t going to get addressed until after August, assuming that we have a package go through the Senate in August. I think that’s right.

Tom Stanek: Great. Thank you for clarifying that, Brian. So, Tom, I know we’ve got a ton to talk to Brian about today. What’s our next topic for Brian?

Tom Davis: Hey, Brian, before we move on, let’s make sure everybody’s clear on joint employer issue. That’s one of those issues that swung back and forth probably as much as any other as the pendulum has swung. And I want people to be confused because one of the low hanging fruit cases was BFI, which is where all the pendulum swinging started. That’s not the rule now. And can you just tell our listeners what is the joint employer test you have to apply today?

Brian Hayes: The joint employer test right now is the board’s 2020 rule from Trump 1, and that is that you have to have direct and substantial control in order to be deemed a joint employer. The case that you’re referencing, the BFI case, was a remand of an earlier case back to the board with instructions that the board had to apply the law as it was then. That’s not the law now.
So, it’s a complete one-off. You don’t have to pay any attention to it and that the law right now is the 2020 rule that is the more favorable employer rule requires direct and substantial control in order to be deemed a joint employer. The only caveat with respect to the 2020 rule is that SEIU, way back when, did file a lawsuit over this, over the validity of the 2020 rule. That’s still being litigated in the appellate court in the District of Columbia. But apart from that, it’s the 2020 rule.

Tom Stanek: So, Brian, our podcast would not be complete by just talking about the NLRB board members as we have. I would like to just spend a minute or two, if we could, talking about our new general counsel, Crystal Carey. Could you maybe share a little bit about who she is, where she’s from, and what she’s really been doing in her new role since taking that office in January of this year?

Brian Hayes: At the time that she was appointed, she was in private practice. She’s been in private practice before. She’s also been a board employee working both sides. She worked the general counsel side of the agency, and she worked the board side of the agency. So, I mean, I think for want of a better phrase, she knows where the bodies are buried at the agency, and she also is looking at the administration of the statute from the eyes of a management side practitioner.

So, I think that it’s kind of refreshing to have someone with that viewpoint in that important position after what we all went through, I think, with having someone with decidedly different views of the statute in there for four years with the Biden administration. So, she’s been starting to, I think, chart out where she wants to go, and you can see that she’s really minded at getting the act to be efficiently and fairly administered.
She sent out one memorandum already that said cases like…she just doesn’t want to entertain some of these really novel and frankly outlandish theories that her predecessor had pursued, like the Ex-Cell-O make-whole remedy for not bargaining. She said she’s not going to pursue that kind of litigation, that she’s very much interested in…she knows that the agency can only survive if it is capable of addressing a lot of cases through the settlement process. Settlements were very difficult to obtain under her predecessor because her predecessor insisted on such Draconian terms to every settlement. Most charged parties simply said, “Well, we’ll just litigate it because we can’t be in any worse position at the end of the litigation than we are in terms of what you want us to settle for.”

So, that contributed mightily to the backlog that we have in the regions and at the board. And Crystal Carey has said, no, if we have a solution that isn’t repugnant to the act and that the parties agree to it, then for heaven’s sakes, let’s get the case settled and off the books and move on to things that are important to the stakeholders. I mean, it’s just a much more practical kind of approach to administering the statute. So, I think that that’s what we’re definitely seeing from her, and I think we’re going to continue to see that.

Tom Stanek: So, Brian, most new general counsels will issue a major case memorandum shortly after taking their role. We have not seen that yet with General Counsel Carey. Any thoughts on why we have not seen that yet? And is it possible for her to issue a memo outlining different types of topics and issues and other types of matters that she might want to see come to her office and give some guidance to the regional offices on how they should proceed in those cases?

Brian Hayes: It is a bit unusual that she did not issue that kind of memorandum that says all the cases involving this particular issue you got to send into Washington. In a way though, I think it’s probably a good sign because when a general counsel does that, it does entail an awful lot of bureaucratic red tape. In other words, everything that comes in from the regions is going to be memoed by the region and there’s a lot of paperwork attends that.

So, I kind of read her not doing that as saying enough of the complexities here, I’m going to make known to the regions through the operations division what I’m not happy with, and we’re going to handle this on a less formal basis with less memoing and hopefully people just getting on board with the priorities that she wants. That’s my guess.

Tom Stanek: So, Brian, without the memoing though, how can she steer the enforcement direction for the regional offices as the kind of supervising body over all the different regional offices of the NLRB, how can she effectuate the intent, like you said, kind of less red tape perhaps, less complexities? How can she steer those enforcement directions and maybe really focus the prosecutorial arm of the NLRB in the right direction that she sees as the proper place to put those resources?

Brian Hayes: Well, my guess is that she has something less formal, but nonetheless equally watchful. That is that she has people in operations management who are watching the regions in terms of what the case issues are, and that she’s making it known through those people that certain of these things…I mean, she certainly said that in the first memorandum that she sent out, that there’s this class of cases that are exemplified by looking for the Ex-Cell-O remedy and similar types of out-there theories, and she has told them, “We’re not going to do this.” So, I think she’s going to do it mostly through surveillance from D.C. through operations management.

Tom Davis: All right, Brian, that brings me to my last question, but I think it’s a fairly significant one. And it involves the Biden board’s Cemex decision, maybe one of the most controversial board decisions of all times, one that dramatically lowered the standard for what’s called a bargaining order, making employers recognize and bargain with the union, sometimes even when the employees voted decidedly against the union. Well, on March 6th, the Sixth Circuit in a case called Brown-Forman completely rejected the Cemex decision and the way that the board got to the Cemex decision.

In a nutshell, I think they said, “You can’t make that kind of significant law change through adjudication and you generally should do that through rulemaking.” By complete chance, Brian Hayes, on behalf of the Coalition for a Democratic Workforce within a day or two of that Sixth Circuit decision, filed a petition with the Labor Board asking them to do the exact same thing, to engage in rulemaking around these bargaining orders and ultimately to abrogate, get rid of Cemex.

What’s going on with these rulemaking petitions? I know there’s the one you filed and a couple of others. And does this give the labor board any way around this, you got to have three vote historic practice to change law?

Brian Hayes: Well, that’s the hope, Tom. I mean, when we looked at this, we thought that, well, it is conceivable that we are stuck with a three-member board for a while here, and that there may be a hesitancy by the two Republican members to break with tradition, particularly when they’ve publicly said otherwise. But that tradition does not extend to rulemaking under the APA, which is, in fact, when I was on the board, the two board members over my objection issued a rulemaking.

So, the tradition simply doesn’t exist. So, we petitioned the board in the instance of Cemex. And Cemex, I think the Cemex decision, particularly after the Brown-Forman case came out of the Sixth Circuit, seems to me to lend itself very well to rulemaking because we’re looking for a general standard that’s applicable to all future cases, which is really what a rule is all about.
So, we’ve asked the board to consider engaging in rulemaking and ask them when they do that, that they need to do several things in any rule. They first of all have to make it clear that remedial bargaining orders are rare and are limited, that they require proof that it’s impossible to hold a free and fair election after the commission of serious unfair labor practices. We’ve also asked in the rule that the board has to take into consideration things like the passage of time and other change circumstances like employee turnover when they’re determining whether or not they should issue a bargaining order.

Those are things that circuit courts have told the board to do for years, and the board has kind of ignored. The requested rule is one that tries to add some sanity and predictability to the way the board will use remedial bargaining orders, and also to bring the board’s view into line, not only with the circuits, but also with the Supreme Court, which was pretty clear in Gissel, which is the seminal case in remedial bargaining orders, that (A) it was supposed to be rare, and (B) that the entire labor relations law really has a preference for using a secret ballot election as opposed to imposing a remedial bargaining order. So that’s what we’re hoping for with the rulemaking request, Tom.

Tom Stanek: Brian, this has been great. We’ve covered a lot of topics already today, but we cannot close out this inaugural podcast for Labor Law Solutions until we discuss one last topic. And of course, that is the update on the constitutional challenges to the National Labor Relations Act and other independent administrative agencies.

One of those involves President Trump’s decision to fire NLRB Member Wilcox in early 2025. That could be headed to the Supreme Court. We also know that there is a case coming out of the FTC, known as Slaughter, where one of the FTC commissioners had their employment terminated, as well. The Fifth Circuit has weighed in on this issue. That case is no longer pending before the NLRB. It has since been dropped.

But if you could, before we close out for today, Brian, just share with us the update on the constitutional challenges with Ms. Wilcox’s termination, as well as what we may be seeing in the coming months from the Supreme Court regarding the FTC Slaughter case.

Brian Hayes: Yeah. Well, just in a nutshell, the constitutional issue is whether or not Congress in enabling or establishing like the NLRA and the NLRB or the FTC or any of these independent agencies, when they put limitations on the president’s right to remove a board member or a similar functionary on one of these independent agencies, is that constitutional or not? A 90-year-old case called Humphrey’s Executor says yes, that the Congress can impose those kind of limitations on the president’s right to remove members of the executive branch like an NLRB board member.

However, Trump has done it twice or more than twice, but in two cases that are of importance, the first is he fired board member Gwynne Wilcox, and he also fired Rebecca Slaughter, who was a commissioner on the Federal Trade Commission. The Slaughter case is at the Supreme Court right now and will probably decide this issue. And the betting is, I think that it’s probably going to be a six to three decision in favor of overruling Humphrey’s Executor and saying that Congress cannot place those limitations on the president because it violates the separation of powers and that the president has got to be able to remove at will any of his executive appointees, including board members or commission members or any of these other individuals that may occupy executive positions in administrative or independent agencies.

So, I think that that’s what the Supreme Court is probably going to find in the Slaughter case. It doesn’t dispel the end of the NLRB, or it doesn’t affect the rest of the constitutionality of the NLRA. Merely what will happen is those restrictions on a president, a future president’s right to remove those individuals will simply be written out of the statute. Statute already contemplates that because it has a severability clause in it that says if any part of it, the statute is found to be unconstitutional, the rest of it survives. So, the rest of the statute will survive, but the right of this president and future presidents to remove board members or commission members whenever they see fit is probably going to prevail.

Tom Stanek: Well, it sounds, Brian, that might be a great place to wrap things up for today and leave our audience waiting until our second podcast in a few months, because it sounds as though the Supreme Court might issue that Slaughter decision sometime before June. And when it does, we’ll have more insight on the fate of Ms. Wilcox’s and future board members terms at the NLRB, as well as some of these other constitutional issues.

So, Brian, thank you very much for your time today. Tom Davis, it has been a great pleasure co-hosting this with you. For all of our audience, please know that we will be back with you in a few months to continue the conversation. If you have any topics you’d like us to cover, please reach out. Between now and then, please also visit ogletree.com and register for Labor Law Solutions, the seminar again between December 2nd and December 4th in Austin, Texas. We’d love to see you in person. Until next time, we bid you all farewell and look forward to hearing from you soon.

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