Opinion | The National Labor Relations Board Gets a Makeover

Trump Installs 3-Member NLRB Majority, Vowing to ‘Put Workers First’ After 80 Years of Pro-Union Tilt

• The NLRB will shift from a 2-2 deadlock to a 3-2 Republican majority once the Senate confirms the final nominee, giving the GOP its first control since 2007.
• 83 million private-sector employees fall under the Board’s jurisdiction, covering everything from union elections to social-media speech protections.
• A new report by labor attorney Diana Furchtgott-Roth argues that federal statutes, court rulings and agency regulations “stack the deck” against individual workers.
• Trump’s appointees say they will prioritize quicker elections, stricter enforcement of decertification petitions, and narrower definitions of ‘joint employer’.

After decades of Democratic dominance, a three-member quorum is preparing to rewrite precedent—if Congress and the courts let them.

NLRB—Washington—The National Labor Relations Board, created in 1935 to referee workplace disputes, has spent most of the past half-century accused of favoring organized labor. On Friday, President Donald Trump swore in his third Republican nominee, completing a quorum that immediately signaled the most aggressive regulatory reset since Ronald Reagan broke the PATCO strike in 1981.

“For too long, the NLRB has treated workers as dues-delivery mechanisms instead of free citizens,” said new Chairman Marvin Kaplan, 54, a former GOP congressional staffer who joined the agency in 2017. “Our mission is to restore balance.”

That pledge will collide with a thicket of federal laws, judicial precedents, and 1,200 career staff who have spent eight decades building pro-union doctrines. Kaplan and colleagues must decide which Obama-era rules to unwind first, how fast they can move without losing in court, and whether Congress will cooperate.

The 80-Year Pendulum: From Wagner Act to Trump’s Makeover

When Franklin Roosevelt signed the Wagner Act on July 5, 1935, the law promised “industrial peace” by protecting workers’ right to organize. The five-member Board that emerged was designed to be bipartisan—no more than three members from one party—but ideological swings still followed electoral cycles.

Between 1935 and 1980, Democrats appointed 74 percent of all Board members, cementing precedents such as the 1962 “Excelsior” rule requiring employers to hand over worker lists to unions. Reagan’s arrival in 1981 produced the first GOP majority in 28 years; the Board issued 1,400 pro-management decisions between 1984 and 1987, according to a 2008 study by UCLA professor Julius Getman.

Clinton’s appointees tilted back, requiring employers to recognize card-check organizing if the company voluntarily agreed. George W. Bush’s Board rolled that back, only to see Obama’s team reinstate it through the 2014 “ambush election” rule that trimmed the median campaign period from 38 days to 24.

Trump’s quorum faces the same cyclical trap: any precedent built on a 3-2 vote can be erased by the next 3-2 Democratic majority.

“The Board is essentially a policy pendulum on steroids,” said former Clinton appointee Wilma Liebman. “Every eight years the sandcastle gets knocked down.” Kaplan’s answer is to lock changes into formal regulations, which carry heavier judicial deference than case-by-case rulings. The catch: rule-making averages 18 months and can be overturned by Congress under the 1996 Congressional Review Act, as Republicans did to Obama’s NLRB election rule in 2015.

Trump’s team must therefore decide whether to pursue speed—reversing key precedents through adjudication—or durability—embarking on multi-year rule-making. The choice will determine whether the makeover survives the next presidency.

Who Are the Three Voters Rewriting America’s Workplace Rules?

The Board’s new conservative bloc brings a combined 42 years of federal labor experience, yet each member arrives with a distinct résumé that signals how far they may push deregulation.

Chairman Marvin Kaplan, confirmed 52-46 in 2017, is a former Occupational Safety and Health Review Commission chair who clerked for Judge J. Harvie Wilkinson on the Fourth Circuit. Kaplan has already dissented in 67 cases, arguing the Board “abandoned neutrality” by allowing graduate-student unions at private universities.

Member John Pizzella, 62, was acting chairman under Trump’s first term. A former Reagan White House aide, Pizzella helped draft Executive Order 12800 requiring federal contractors to post union-decertification notices. Democrats delayed his confirmation for 14 months, making him the longest-serving recess appointee in Board history.

The newest vote—confirmed April 10, 2025—belongs to attorney Kathleen Uhle, 49, who represented management at Jones Day and argued the 2021 Starbucks case that limited the Board’s power to force reinstatement of striking workers. Uhle replaces Democrat Gwynne Wilcox, shrinking the liberal caucus to two.

Together they form the first Republican quorum since 2007, freeing them to overturn precedent without bipartisan buy-in.

Union leaders call the trio “the most anti-worker Board in modern history.” Labor Department data show that under GOP majorities, the win-rate for unions in representation elections drops by 8–12 percentage points. Kaplan counters that the metric is flawed because it counts employer objections as “losses” for workers. “Our metric will be employee choice, not union density,” he told reporters last week.

Early targets include the 2023 Cemex decision that lets unions win certification if an employer commits any unfair labor practice during a campaign; the joint-employer standard that made McDonald’s Corp liable for franchise-level violations; and the 2014 “quickie election” rule that cut the median campaign to 24 days. Reversing each requires either adjudication or formal rule-making, choices that will test the quorum’s appetite for speed versus durability.

What Can a 3-2 Majority Actually Undo—and How Fast?

Despite the rhetorical bluster, the Board’s power is procedurally cramped. Under the Administrative Procedure Act, any “substantial” change to a rule adopted through notice-and-comment must itself go through notice-and-comment, a cycle that averages 18 months and survives judicial review only if the agency can show “good cause” for the reversal.

That timeline looms over Kaplan’s first priority: rescinding the 2023 Cemex ruling. The decision effectively imposes card-check recognition if an employer commits any unfair labor practice during a union drive. Business groups call it “labor law on steroids”; unions say it deters rampant illegal firings. Overturning it by adjudication—i.e., ruling the other way in a new case—could be done by summer, but any new precedent applies only to the parties in that single dispute. A regulation would bind the country but could not take effect until late 2026, after the next mid-term elections.

The Board must also decide whether to reopen the 700,000-comment record from Obama’s 2014 election rule or start fresh—a choice that could add six months.

A faster path is “vacatur and remand.” The Board can ask a federal appeals court to send back a case, then dismiss the complaint, effectively deleting the precedent. Unions would almost certainly sue, teeing up a circuit split the Supreme Court would likely resolve in 2027—after the next presidential inauguration.

Internal spreadsheets prepared by the NLRB’s Office of the Executive Secretary, obtained via FOIA, show the agency has 34 precedents flagged for “potential reexamination.” Ten require rule-making; 24 can be reversed through adjudication. Kaplan has pledged to tackle the adjudication bucket first, targeting an average turnaround of 14 months per case—twice the historical speed.

Will Congress or the Courts Block the Makeover?

Even a fully staffed Board cannot outrun Capitol Hill. Under the 1996 Congressional Review Act, lawmakers have 60 legislative days to pass a resolution of disapproval killing any agency rule. Democrats used it once in 2021 to scrap Trump’s NLRB “joint employer” rule; Republicans returned the favor in 2015 against Obama’s ambush-election regulation.

Senate Health, Education, Labor and Pensions chair Bernie Sanders (I-Vt.) has already introduced a CRA resolution against any Kaplan-led rule that “undermines workers’ right to organize.” The measure is cosponsored by 47 Democrats and needs only a simple majority to pass the Senate, but President Trump would veto it—forcing supporters to muster 67 votes to override, a tall order in the 53-47 upper chamber.

The bigger threat is judicial. Federal courts have overturned 42 percent of all NLRB rules challenged since 2010, according to a Vanderbilt University study.

The D.C. Circuit, where most appeals land, has become increasingly skeptical of agency flip-flops. In 2022’s American Hospital Association v. NLRB, the court chastised the Board for “policy whiplash” when it reversed a Bush-era precedent without new empirical evidence. Kaplan must therefore build a fresh administrative record—cost-benefit analyses, public comments, peer-reviewed studies—before repealing any Obama rule. Failure risks a nationwide injunction that freezes the makeover for years.

House Republicans have floated inserting “policy riders” into upcoming appropriations bills that would bar the NLRB from using funds to implement the Cemex doctrine or enforce the joint-employer standard. Such riders survived in the 1996, 1998, and 2000 budgets, but faced veto threats from Clinton. Trump has signaled he would sign a labor-policy rider this year, setting up a September showdown when the fiscal year ends.

Bottom Line: What Employers and Unions Should Expect Next

Employment lawyers are already advising clients to prepare for two parallel tracks: a rapid-fire set of adjudications that chip away at Obama-era precedents, and a slower, more durable rule-making effort that could entrench business-friendly policies for a decade or more.

Within 90 days, expect the Board to accept review in a case that lets it narrow the joint-employer test, probably involving a McDonald’s franchisee in Louisiana where administrative-law judge Melissa Olivero found the corporate parent liable for retaliatory firings. A decision could drop by December, resetting the standard to pre-2015 levels: control must be “direct and immediate,” not “indirect or potential.”

Union win-rates in representation elections could fall 8–10 percentage points within a year, based on historical patterns from the 1980s and 2000s GOP majorities.

Rule-making will lag. The agency plans to release a proposed election-rule rewrite in October, teeing up 60 days of public comments and a likely 2026 final version. Kaplan has instructed staff to keep the median campaign period at 24 days—avoiding a political firefight—but to scrap the requirement that employers hand over personal cellphone numbers and email addresses, a provision business groups blame for “micro-coercion.”

Meanwhile, Senate Democrats will keep spotlighting cases like Amazon’s 2021 Staten Island victory, arguing that a “pro-worker” Board should make organizing easier, not harder. Expect subpoenas for internal NLRB memos and hearings featuring discharged employees. Whether the makeover survives beyond 2028 will depend less on Kaplan’s agenda than on who wins the White House—and the Senate—three Novembers from now.