Recent Decisions and Early Policy Signals Under the ‘New NLRB’

In early 2026, newly appointed members to the National Labor Relations Board (NLRB — Republican members Scott Mayer and James Murphy) were added to serve alongside long-time board member and Democrat David Prouty. This “new NLRB” and General Counsel Crystal Carey moved quickly to address a significant case backlog. This board has adopted a more employer-friendly outlook than its predecessor, and this has become clearer through their decisions issued through early March.

Here are the highlights.

Overreach in Previous NLRB’s Actions?

First, some background. 

In 2023, the Biden board jolted employers by contradicting the Supreme Court’s 1969 Gissel ruling. Their newer Cemex standard put employers at higher risk of a bargaining order for unfair labor practices after unions lost elections, whereas Gissel would explore other remedies and lead to bargaining orders only when employer conduct was extreme.

HR Q&A: What Is an Unfair Labor Practice by Management?

In this month’s Brown-Forman Corp. v. NLRB, the 6th U.S. Circuit Court of Appeals declined to enforce a Cemex bargaining order and sent the case back for NLRB review. In doing so, the court found that “the Cemex board exceeded its adjudicatory authority” while overturning Gissel precedent. Notably, the court did not take issue on the board’s fact-finding about the employer’s conduct, but the 6th Circuit saw clear overreach by the NLRB.

Expanded ‘Make-Whole’ Remedies Remain in Place

By contrast, in Lodi Volunteer Ambulance Rescue Squad, the board’s Republican members declined to weigh in on the legality of Biden-era expanded “make whole” remedies established under Thryv for unfair labor practices violations. According to these members, there was “no need at this time” to do so, although they may well revisit the subject when the NLRB has more than three members.

Long-Standing Precedent Recently Upheld

The Biden-era NLRB intended to overturn Ex-Cell-O Corp. (1970) but fell short of doing so before administrations changed. If they had been successful, the board would have carried out former General Counsel Jennifer Abruzzo’s call for further “make whole” remedies — that is, wages and benefits that workers would have received if a contract had been reached —when employers refuse to bargain while seeking judicial review.

In a new decision, Longmont United Hospital and National Nurses Organizing Committee/National Nurses United, the current board declined to overturn Ex-Cell-O while deciding that NLRB’s 1970 call was correct. The board’s Republican members reasoned that an expanded remedy would not only prevent employers from pursuing court review but also impede good-faith negotiations during collective bargaining.

HR Q&A: What You Need to Know About Collective Bargaining Agreements

2020 Joint Employer Standard Is Back

The NLRB has brought back its 2020 joint employer rule, which requires that businesses must exercise “substantial direct and immediate” control over core workplace conditions — such as wages, scheduling, and benefits — before they can be classified as a joint employer for liability purposes. It’s a higher threshold to meet than the Biden-era standard requiring that a business only potentially be able to influence these conditions.

Yet that’s not all. Mere days before the board’s decision, the D.C. Circuit Court of Appeals ordered the board to reaffirm Browning-Ferris (2015), which expanded joint employment, in a case specific to one employer. The case was then remanded to the NLRB, which complied with the court’s ruling regarding the limited facts of that particular case. For the future, however, the board was clear that it is moving back to the 2020 limited definition of businesses that will be considered joint employers.

Quorum Questions Addressed 

The newly constituted board’s first substantive decision, Satellite Healthcare (Santa Rosa), addressed its own existence, and the NLRB took no chances regarding its authority if the board falls below quorum again, which could happen in August if David Prouty’s seat goes unfilled when his term ends. 

In this case, the board confirmed that regional directors have authority to certify election results and perform other functions related to representation cases. 

Streamlining Operations Prioritized

Through her memos, Carey’s focus in addressing conflicts is on settlement rather than litigation. She further declared that she “will not immediately issue” a list of cases that she would like the board to reconsider. Carey has also affirmed former acting General Counsel William Cowen’s procedural change requiring unfair labor practices charging parties to submit evidence — and a witness — within two weeks before cases are assigned for investigation. In these ways, Carey’s board is prioritizing efficiency, also at the regional level, as the NLRB works through its backlog.

Kimberly Ricci is a content development writer with LRI Consulting Services Inc. in Broken Arrow, Okla.