Labor Law Solutions: How the NLRB’s New Employer-Friendly Majority Could Reshape Labor Law

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Tom Davis: Well, welcome all. This is Labor Law Solutions, the podcast. It’s our second installment for 2026. Labor Law Solutions, the podcast is a production of the Ogletree Deakins Traditional Labor Practice Group and part of our Labor Law Solutions program. My name is Tom Davis, and I’m one of your co-hosts for today. More importantly, I’m joined by two outstanding lawyers, great people, and good friends of mine, Tom Stanek, out of our Phoenix office. Tom, how are you doing, sir?

Tom Stanek: I’m doing great, Tom. It’s great to be here today. Glad to be part of Labor Law Solutions, the podcast. Number two series of 2026. I’m so thrilled to have Brian with us. Brian, as we all know, is out of our Washington D.C. office. Brian, how are you today?

Brian: I am well, Tom. It’s good to be with all of you today.

Tom Davis: Well, I hope most of you in the audience are familiar with our Labor Law Solutions brand. If not, in a nutshell, it’s an annual labor law program. Again, sponsored by the Ogletree Deakins Traditional Labor Practice Group. We’ve been doing it for 10 plus years now. And in fact, our 2026 installment is coming up in December. If you don’t do anything else, please listen to the end of this podcast because we’re going to review the agenda for Labor Law Solutions 2026 and give you all the details about how you sign up and are able to join us in Austin in early December of this year. But we’ll do that at the end of the podcast.

But again, the podcast is created for that sizable community of folks who have either attended Labor Law Solutions or might be interested in attending Labor Law Solutions. And our goal from this podcast, as it is with the Labor Law Solutions program itself, is to really keep labor practitioners and labor experts up to speed on the developments with labor law.

And boy, do we have a couple of major topics to cover today? So, without further delay, Mr. Stanek, we’ve been waiting for this one for some time now. And originally it was to get two members on the National Labor Relations Board. And then after we got two, to actually have three, what I’ll call management-minded members. And as of last Friday, at least the third management-minded member was confirmed. I think we still have to get him sworn in. But tell us about that development and also tell us why it matters to have three of these Republican NLRB members.

Tom Stanek: Absolutely. So, it’s been an exciting few months. They’re on the first podcast courting. We were waiting with somewhat bated breath to see what Congress was going to do as it related to the NLRB. We knew that we had two vacant seats. One seat still remains a little bit in question. Brian and a bit is going to speak a bit more about the seat that Gwynne Wilcox once held. But now we know as of last Friday that James Macy has been confirmed as the fourth member of the NLRB.

And this is exciting for all the employers out there because Mr. Macy comes from a management side labor and employment practice. He was in private practice for many years in the Milwaukee area. He recently took a role at the Department of Labor as acting administrator of the Wage and Hour Division. He showed some interest in traditional labor law, I think probably going back to his days in private practice and was found to be someone that would be able to get across the line.

And fortunately, last Friday he did. So, he will be the third management friendly, employer friendly member of the NLRB. The reason why this is exciting is because now we have the quorum necessary to see some of the anti-employer decisions, some of the more pro-union decisions reverse and come back to either more of the neutral ground or something more employer friendly like we had seen previously.

The tradition at the NLRB, and I’m excited for Brian to also comment on this since he was once there, is the tradition is to not overturn extent law with only the majority being two members. So, a one majority. Instead, it really has to be a majority of the five-member board. Three members must find in favor of reversing or overruling that prior precedent. So, it’s really a great opportunity for us to see some of the decisions that have given us much consternation, many sleepless nights to start seeing some changes.

Tom Davis: Hey Brian, look, I didn’t say this in the introduction, but you’ve been a brand-new NLRB member yourself. Once Mr. Macy gets sworn in, what does he have to go through to get up and running?

Brian: Well, I think, Tom, essentially, he has to do probably four things. First of all, he’s got to pick and kind of get oriented with whoever his chief counsel is going to be. That decision and that process, the importance of that can’t be overstated. I mean, the chief counsel keeps the trains running and is kind of like your sounding board and typically a wealth of procedural and substantive information for you as a board member. So that’s a critical decision he has to make at the very outset.

Second thing he’s got to do is he’s got to get acclimated to kind of the pace and the rhythm of the way the board functions. The board functions very much like an appellate court or a Supreme Court. There are days on which you have case discussion with other members. That’s called an agenda day. And then there are days that my rhythm was always to divide them up by days that were reserved for writing and for reading because there’s a tremendous amount of reading with the job.

The other thing, and he’s also going to get used to the fact that that sometimes feels like bailing a boat where you can’t bail fast enough to keep it from sinking because there’s a lot that comes at you awful fast. And you also have to be used to the fact that that whole system is oftentimes interrupted by kind of one-off decisions like a 10(j) request or an emergency request of some kind or things out of the ordinary. So, he has to get that rhythm down.

The third thing is that he’s got to get used to, and most importantly, trust his support staff. Each board member has a number of attorneys that work for them, that read the thousands of pages and abstract the facts of the case and provide legal memorandum. You’re going to know who’s good, who you got to be more careful of their work product with, and who to trust for the soundest opinions.

And lastly, in Macy’s case, unfortunately, he’s going to have a learning curve because he hasn’t been in private practice in a traditional labor law capacity. He’s going to have a learning curve with some of the substantive law. So those are the four things I think have to happen.

Tom Davis: So, I know this is a guess, but how long do you think it’ll take before he’s ready to start issuing decisions?

Brian: I don’t think that’s going to be until probably mid-to-late fall at the earliest for all the reasons that I just suggested. And also, the fact that I think that because he’s relatively new, they’re going to give him some low hanging fruit first in terms of the cases they tee up and the order that they’re teed up in. So, I think that the easier cases will come out first.

Tom Davis: So, Tom, now we have three votes. Do you have any tea leaves to read, crystal balls to interpret as to what decisions might be a priority and whether there are any cases in the queue?

Tom Stanek: It’s always hard to read the tea leaves, Tom. There’s plenty of cases I’m sure that this new board would love to start revisiting. First of all, there needs to be a case at issue for the board to actually address and then to overturn that extent law. So, I know that the general counsel’s office has a number of matters regarding these various issues in the queue. As Brian just indicated, it’s going to take some time.

I will hope with the rest of the employer community that by mid-fall, we start seeing something coming down the pipeline. I think there’s probably a handful of priority matters though that really did make the largest waves in traditional labor over the last five years or so that the new board likely will want to prioritize.

Probably the largest one that made the largest splash was in August of 2023. The decision that actually changed the bargaining order standard from the Supreme Court standard from decades ago called the Gissel standard to a much more flexible union-friendly standard that became very difficult, almost impossible for most employers to comply with.

So, I think that bargaining order standard would probably be one of the earliest issues revisited by this new board and addressed in the same spirit of the representation cases, the union campaign type cases. I think the American Steel Construction decision that dealt with what it takes to have a community of interest among bargaining unit employees, I think is another decision that this board likely will visit very soon and likely restore it to a much more employer friendly standard where it does not need to be an overwhelming community of interest, but simply a community of interest.

A few other cases and decisions and issues I think this new board will address. One is regarding remedies. I think the board’s approach a few years ago in expanding traditional remedies under the NLRA to view themselves more in a consequential damages type way is likely going to be visited and likely overturned by the new board.

I think the standard that had existed for decades, the Tri-Cast standard regarding employer campaign statements and what could occur if a union does start representing employees at issue, that’s the Siren Retail case. I believe that’s one that’s probably on the high priority list.
A few others, captive audience, we know captive audience, which is a very pejorative term, which none of us in the employer community would ever use. In fact, most of the folks that we talked to, none of the employers that we’ve ever worked with would ever hold someone to a disciplinary standard for not attending a meeting with educational purpose to talk about union issues. But I think that the captive audience decision that came out in November of 2024, I think that decision is highly likely going to be at a top priority to overturn.

And then another one that I know made a massive splash beyond even anything in the union space was the McLaren Macomb decision in early 2023. That decision was the decision that dealt with confidentiality and non-disparagement language in severance agreements. And it really did create a pretty seismic impact throughout all employers throughout the country because with or without a union, most employers do use some type of severance agreement, a settlement agreement, a confidentiality agreement, maybe some other kind of non-disparagement expectation.

So, I think that’s another decision that in all likelihood be very high priority for this new board. And then because the pendulum swings quite often in the joint employer space, we probably will see something there as well. I’m guessing something in joint employment, whether it’s rulemaking, whether it’s a case decision that sets a more employer-friendly standard, something that requires direct and immediate control over the employees at issue to actually demonstrate joint employment obligations.

Tom Davis: Great, Tom. Good list. For our listeners, we’ll be certainly keeping an eye on those developments as a firm and as a practice group. And as things come out, we’ll be posting summaries on our blogs, and we’ll be covering these topics in future podcasts. So, keep an eye on that.

Obviously, Brian, we’ve been waiting on that development at the Labor Board for some time. The other thing we’ve been waiting on is the Supreme Court. To answer a question about its constitutionality, but it really is of a large number of independent administrative agencies. One of them being the National Labor Relations Board.

The constitutionality of the acts creating those agencies and the Article II Powers of the Executive. In a nutshell, a president appoints these leaders of these independent agencies like the NLRB. They’re confirmed by the Senate, but there are limitations on the ability to remove those individuals, even if the president disagrees with them. And the statute and Congress did that very purposefully to insulate, I guess, these independent agencies from political pressure.
Hey, Brian, is that constitutional any longer?

Brian: The answer is clearly after a case called Trump v. Slaughter in the Supreme Court last term. The answer to that is clearly no. Those restrictions that Congress has put on the president’s removal power violate the Constitution. The reasoning is pretty simple that the President is the head of the executive branch and has the responsibility under the Constitution to see that the laws are faithfully executed. That means that he or she has to be able to pick the people for executive positions that are going to follow his direction.

It shouldn’t be surprising to people that if you hire somebody to carry out your responsibilities for you, if you’re delegating them to that person, that you have the unrestricted right to change that person if you have a disagreement about that policy. It’s a pure separation of powers issue. And the Supreme Court found that the unrestricted right to remove somebody in one of those positions is guaranteed to the president by the Constitution.

Tom Stanek: So, Brian, I have a question for you. So now that we’re applying the Slaughter decision to essentially what we expect will be applicable to the NLRB and the seat that Gwynne Wilcox once had, as I referenced, knowing that that will apply to board members, what are your thoughts on how that decision could extend to other individuals within the NLRB process?
For example, administrative law judges who are obviously connected to the NLRB through the division of judges, or regional directors who do report to the general counsel, but also have extreme responsibility and authority to dictate policy that the executive branch would expect. So, what are your thoughts on the ALJ, Administrative Law Judge and/or regional director status at this time in light of the Slaughter decision and how it could apply to these NLRB officials?

Brian: Well, I think that both categories, both administrative law judges and regional directors exercise considerable executive authority. They are also by a variety, it’s not in the statute like it was with respect to board members, but they too have statutory protections against removal. And I think that they’re probably just as unconstitutional. So, I think that Slaughter answers the answer with respect to regional directors and ALJs I think is exactly the same as for board members.

Tom Davis: So, Brian, if part of the act is unconstitutional, is it all unconstitutional?

Brian: Well, probably not because when the Supreme Court finds a statute to be unconstitutional, it engages in what’s called kind of a savings doctrine in which it severs out the portion of the statute that is found to be unconstitutional. In this case, the protections against removal, and keeps the rest of the statute intact. That’s the typical remedy that the court applies, one of severance.

It’s very likely that that would apply here because not only is that the typical doctrine, actually the statute itself contains a separate severance provision which says, “If part of this is unconstitutional or part of it is struck down, then the rest of it remains.” So, I think everything else stays in place with one caveat. There is also a line of appellate cases that say, “Well, if the part that’s struck is essential to the entirety of the statute, then maybe the whole statute has to fail.”

So, the question would be whether the insulation by virtue of removal restriction that the Congress placed with respect to board members, whether that was so essential that it kind of permeates the entire statute such that the statute must be struck down. I think that’s unlikely, but it is a possibility. As of now, the remedy though has been one of severance.

Tom Stanek: So, Brian, some of the litigation that’s emerged over the last few years has really focused on this constitutionality issue. And we’ve seen some employers facing NLRB proceedings, whether they’re typically in the ULP forum and even sometimes in the representation case matters, but they’ve gone to federal court and tried to seek an injunction to challenge the constitutionality of the NLRB itself and that the actions that the regional directors pursuing those ULP cases or maybe handling those representation cases would be doing.
In light of the Slaughter decision, do you anticipate that those same arguments about the separation of powers, the Article II violations, the other unconstitutional arguments that employers have made sometimes quite successfully, and particularly in the Fifth Circuit, do you think those same types of cases will have the same impact now going forward in light of Slaughter?

Brian: Well, the answer to that is yes and no, Tom. Yes or no, rather, with respect to cases that raise the exact same issue as Slaughter. That is, if you go into a court now and want to join an NLRB proceeding because there’s a removal restriction in the statute for board members, I think that case is going to go nowhere.

I mean, there was one of these in Texas, a case called Aimbridge. And in Aimbridge, what the court said is, “We’re not going to give you an injunction because the Supreme Court spoken and we consider severance to be the appropriate remedy. So, we’re just severing that out of the statute. So, as we sit here today, trying to decide your injunction request, the board member can be removed by the president because we’ve written that out of the statute. So, you don’t have a case.”

Now, there are other constitutional infirmities that employers have raised that are way too numerous for today to go into, but they relate to whether the statute complies with the due process clause, with a host of other constitutional issues. Those are still, I think, very much alive. So, an employer could raise one of those and then go into federal district court and try to enjoin the board’s proceeding on those grounds.

Tom Stanek: Okay.

Brian: The Slaughter related grounds are out.

Tom Stanek: So just to sum up, Brian, for the audience. It sounds like trying to attack the NLRB’s constitutionality based upon board member removal powers not going to have the same impact as it may have previously. Slaughter‘s addressed that it can be removed from the statute, can be severed out with the statute remaining. That said, perhaps you still could pursue injunctive relief seeking some type of unconstitutional issue regarding the ALJ and/or regional director who was involved in the matters?

Brian: Yes. Yeah. I think so, because it hasn’t been extended to them specifically.

Tom Davis: So, Brian, I’ll ask you one last question on this topic. I don’t read a lot of Supreme Court decisions. They’re above me, but I did read this one. And I was particularly entertained by Justice Gorsuch’s opinion, which frankly was an interesting history lesson. But something he said was to the effect of this. This is just the start. And the only sure path is to finish the journey, basically suggesting that the executives should do what executives do. The legislative branch should be Congress creating laws and the judicial branch should be the courts interpreting those laws. Do you have any prediction about where the future of this argument goes and what the NLRB looks like under that future?

Brian: Yeah. I think we’ve already seen that continuum about which Gorsuch speaks. Remember, we had Loper Bright where the Supreme Court said there’s no more deference to board’s determination with respect to its legal interpretation of the statute, that legal interpretations are not for the board, they’re for the courts. And we’ve had Brown-Forman, a circuit court case saying that the board cannot create policy through adjudications, that they have to comply with the Administrative Procedure Act.

There’s also, I think what Gorsuch is really referring to is thus far, we haven’t had a really robust review of the adjudicatory authority of these agencies. Remember, the board acts like a court. I mean, it has its own trial judges. It has its own appellate process. It has its own rules of evidence. And there’s a substantial question as to whether or not those comply with the due process requirements of the Constitution, which is where I think they’re going to go next. And that is the adjudicatory phase or adjudicatory function of these independent agencies.

There’s been a long history of where there’s a dividing line between matters that are what they consider private adjudication and public adjudication, where in the latter case, less constitutional guarantees apply. I think that that may dissolve soon and that we may be really looking at the adjudicatory constitutionality of the statute.

Tom Stanek: Brian, this has been amazing, Tom. It’s been great. I think we were remiss to not at least highlight our next big event for our practice group. And that is our Labor Law Solutions seminar that is fastly approaching in December. It’s December 2nd through the 4th in Austin, Texas. We’ll be at the JW Marriott. The agenda is available. We’re very excited to have a three-day program starting on Wednesday afternoon and going all the way through Friday midday.
We have five interactive tabletop exercises for the participants to engage in with our Ogletree traditional labor attorneys. We are also super excited to have Scott Mayer, board member at the NLRB joining us as our keynote speaker for our Thursday lunch hour. We have everything soup to nuts covering on what’s going on at the NLRB, in the NLRA. And even though 2026 started a little slow for traditional labor issues, obviously the recent events of having James Macy join the board. Soon he’ll be sworn in, tackling some of those decisions, seeing what’s going on at the Supreme Court. If any new decisions arise, that will impact the NLRA and NLRB. Just a very exciting Q3, Q4 of 2026 coming up.

So, I just want to say thank you again for having us with all of you for this Labor Law Solutions, the podcast, installment number two. Looking forward to seeing all of you at Labor Law Solutions, the seminar. If you need the agenda, please reach out to your Ogletree attorney, our client services group, or either Brian Hayes, Tom Stanek, or Tom Davis, and we’ll happily send you a copy.

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