NLRB to Undo Major Biden/Obama Board Decisions?

By Richard Lehr - Lehr Middlebrooks Vreeland & Thompson, P.C.

August 17, 2026

Other than the Federal Trade Commission, I can’t think of a federal agency where changes to precedent occur based on the political party of the sitting President more than with the NLRB.  The President is allowed to nominate three of the five Board members—subject to Senate approval—from the same political party.  Last Friday, the Senate confirmed two Board members, but the key outcome is that one of those members—James Macy—is a Republican, which gives the Board a 3-1 Republican majority (a Democrat Board seat remains unfilled).   The major cases we expect the Board to address include:

•  Cemex Construction Materials Pacific LLC. The Biden Board ruled for the first time in history that if a union demonstrates majority employee support in an appropriate unit, such as through a signed petition or cards, the employer will be unionized unless the employer—not the union—files for a NLRB conducted secret ballot election.

•  Amazon.com Services LLC. Amazon overruled long-standing precedent that an employer may require employees to attend a meeting during working time where the employer discusses unions and may discipline employees who refuse to attend.

•  Valley Hospital II. After the expiration of a contract, an employer must continue to deduct union dues even if the dues checkoff expired as of the date the contract expired.

•  Home Depot. If an employee complains of discrimination, it is treated under Section 7 as concerted activity.  That is, it is considered for the aid or protection of other employees, even if they do not know about the complaint.

•  American Steel Construction, Inc. For years, the standard for whether a bargaining unit sought by a union was appropriate was based on whether job classifications not in the proposed unit share a community of interest with the proposed unit and should be included.  Unions usually ask for a bargaining unit that reflects where the union has its greatest support.  If an employer can show that other job classifications share a community of interest, those classifications are added to the petition and may either result in the union withdrawing the petition or increase employer support at election time.  American Steel changed the burden for the employer—it must show that excluded classifications share an “overwhelming” community of interest—a substantially more difficult standard to meet. 

The Board will need to have the “right cases” before it in order to undo these and other precedents.  If that happens, how long it lasts will depend on the political party of the next President. 

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