NLRB Changes: Chevron Deference & What's Next

What employers should know about key developments this week:

NLRB Shifts to Republican Majority: The Senate confirmed David Prouty and James Macey to the National Labor Relations Board (“NLRB” or “Board”) in August, establishing Republican control with three Republican members among the four currently confirmed. General Counsel Crystal Carey has indicated her intent to present several decisions for the new majority to overturn, particularly the Cemex, Stericycle, and Thryv decisions from the Biden era.
Chevron Deference Ends: Following the U.S. Supreme Court’s Loper Bright ruling, courts are no longer required to defer to agency interpretations of ambiguous statutes. Circuit courts now have authority to reject NLRB positions that lack statutory support.
“Successor Bar” Doctrine Challenged: The U.S. Court of Appeals for the District of Columbia Circuit rejected the Board’s authority to impose the “successor bar” doctrine—a Board-created rule affecting when representation elections can proceed after a company acquisition. Circuit courts are now scrutinizing other NLRB doctrines that lack statutory or regulatory foundation.

In this episode of Employment Law This Week®, Epstein Becker Green attorneys Steven M. Swirsky and Erin E. Schaefer discuss the NLRB’s new landscape under Republican control and how the end of Chevron deference affects agency interpretations.

New NLRB Majority and the End of Chevron Deference: What’s Next?
Play
September 2, 2026

Transcript

[00:00:03] George Whipple: Welcome to Employment Law This Week. I’m George Whipple. New Labor Relations Board majority, new priorities. So what’s next? - Last month, the Senate confirmed one new NLRB member, and a new term for a Biden nominee whose term was expiring, securing a 3-1 Republican majority on the Board. Epstein Becker Green’s Erin Schaefer tells us more about the new-look NLRB.

[00:00:35] Erin Schaefer: In August, the Senate confirmed David Prouty and James Macey to the National Labor Relations Board. Member Prouty is continuing his service and will start another term. Member Macey is a new Republican member of the Board. What this means is that they will join their colleagues on the Board, which will now have four members. While there remains one vacancy, three of those members are Republicans, and we expect, because the Republicans now have a majority of the five positions on the Board, they will begin to overturn precedent. General Counsel Crystal Cary has indicated she intends to put several decisions before the Board to overturn them, particularly related to Biden-era decisions.

[00:01:16] George Whipple: General Counsel Carey released a memo last week that outlined the precedents she intends to ask the new Board majority to overturn. These include the Cemex, Stericycle, and Thryv decisions. The courts have a role to play here, too. Following the landmark Loper Bright ruling, courts are no longer required to defer to agency interpretations of statutes. There has been some question as to how this works in practice. The picture became a little clearer recently when the D.C. Circuit rejected the Board’s authority to impose and apply the Board-created successor bar doctrine. Epstein Becker Green’s Steve Swirsky tells us more.

[00:02:01] Steve Swirsky: This is a case that dealt with what is called a Board-made doctrine, meaning that the “successor bar” doctrine—which affects when an election can be held after a company has been purchased or bought and the new employer is a successor, and it recognizes the union of the employees of the acquired company—is part of a series of Board decisions that say there are certain circumstances in which the Board says an election should not take place and that a time should be permitted for bargaining before an election can take place, before a representation petition can be processed. The doctrines are not in the statute. They are not in rules that have been issued by the National Labor Relations Board. These are all case law-type doctrines.

[00:02:52] George Whipple: The DC Circuit’s decision focused on the history of the “successor bar” doctrine, noting it was established by the Board, modified by the Board, dropped completely by the Board, and readopted, shifting policy based on the makeup of the Board. While other federal agencies tend to follow rulemaking and other procedures more than the NLRB, Steve says this is a clear sign of what’s to come for other doctrines and interpretations.

[00:03:22] Steve Swirsky: This decision is, I think, a clear sign of how the circuit courts—certainly starting with the DC Circuit, and I'm sure we are seeing it already in other circuits—are addressing the whole question of what deference they owe to administrative agencies post-Loper Bright. The concepts here that the Board, that the court relied upon, are going to be the same whether they're looking at decisions out of other agencies or other decisions from the NLRB.

[00:03:55] George Whipple: Thanks, Steve and Erin. And thank you for watching. We’ll see you next time.

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