If you are planning a union drive, the 2026 NLRB changes raise questions about recognition, workplace rules, and employer conduct. The National Labor Relations Board now has a Republican majority, and its General Counsel has asked the Board to reconsider several major decisions.
Those requests do not change existing Board precedent on their own. Covered workers retain their right to organize under the National Labor Relations Act while the Board and federal courts consider these issues.
Workers continue to form unions while these legal questions develop. The U.S. Bureau of Labor Statistics reports 14.7 million union members in 2025 and a 5.9% private-sector membership rate. These figures cover 11 months because the government shutdown left no data for October.
An analysis by Ogletree reports 2,100 union election petitions in fiscal year 2025. Unions won 81.9% of elections held following employee representation petitions. This percentage measures election results, rather than the outcome of every petition filed.
For most of 2025, the Board lacked enough members to decide cases. Scott Mayer and James Murphy took office on January 7, 2026. Their arrival restored the NLRB quorum, which is the minimum number of members needed to conduct business.
The Senate later confirmed James Macy and approved David Prouty's second term. The current Board has:
NLRB General Counsel Crystal Carey issued Memorandum GC 26-04 on August 26, 2026. The General Counsel memo (GC 26-04) identifies decisions she wants the Board to review.
The memo directs regional offices to continue applying existing Board precedent while the General Counsel seeks reconsideration. It also reports that staff reviewed 9,247 pending cases and reduced the number awaiting an initial decision by more than 50%.
|
Decision |
Current Board Rule |
Change Carey Seeks |
|
Cemex |
Allows a bargaining order when employer violations require setting aside an election. |
Return to the older Gissel and Linden Lumber standards. |
|
Amazon.com Services |
Bars employers from forcing workers to attend meetings about union views. |
Allow mandatory captive-audience meetings again. |
|
Stericycle |
Restricts workplace rules that could discourage protected activity. |
Give employers more room to set workplace rules. |
An employer cannot rely on the memo alone as evidence that the Board has reversed these decisions.
Under the Cemex decision, a union can request recognition after showing majority support. The employer must then voluntarily recognize a union or promptly seek a union election, generally within 2 weeks. If the union already filed a petition, the employer does not need to file another one.
If an employer commits unfair labor practices that require the Board to set aside the election, the Board may issue a bargaining order requiring the employer to recognize and bargain with the union. The NLRB's Cemex guidance explains the process.
In March 2026, the Sixth Circuit rejected the Cemex framework in Brown-Forman Corp. v. NLRB. The employer raised pay and gave workers bourbon 1 week before the vote. Although the court found unlawful conduct, it refused to enforce a bargaining order after the union lost 14-45.
That ruling makes Cemex-based orders harder to enforce in Kentucky, Michigan, Ohio, and Tennessee. By comparison, the Ninth Circuit enforced the Cemex order under the older Gissel test. It did not decide whether the newer Cemex framework was valid.
If you serve on an organizing committee, prepare for a secret-ballot election even if you seek card-check recognition through signed authorization cards. Keep dated records of threats or promises of benefits that relate to union activity. These records may help support an unfair labor practice charge.
Under Amazon.com Services, employers cannot threaten discipline or dismissal to force workers into meetings about union views. They may hold voluntary meetings if they follow the Board's safeguards.
Federal rules could change if the Board reverses that decision. A reversal of Stericycle or Tesla could also affect workplace rules, dress codes, and employees' ability to display union insignia, including union buttons. State protections may differ, so seek advice about the rules that apply to your workplace.
Section 7 still protects covered workers who organize, join unions, or act together over working conditions. These statutory rights remain in place regardless of the General Counsel's policy priorities. The National Labor Relations Act does not cover everyone, however. It excludes supervisors, independent contractors, and public employees, among other groups.
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An organizing committee can continue building support while monitoring legal developments. Document employer conduct, maintain private communication among workers, and prepare for an election with guidance from your union or labor attorney.
This article provides general education, so speak with a labor attorney about your own case. You can also learn whether an employer can fire you for joining a union and which records may help document retaliation during a union drive.
It remains Board precedent as of September 21, 2026, although federal courts may limit its enforcement. Seek current legal advice before making a recognition demand, particularly where a court ruling may affect enforcement.
Current Board law bars an employer from making you attend by threatening discipline or dismissal. Carey wants that rule changed, but her memo does not change it.
Yes. An employer may voluntarily recognize a union based on signed authorization cards from more than half the workers in an appropriate bargaining unit, the group of employees the union would represent. Valid recognition generally allows a period for bargaining without an election challenge.
The usual limit is 6 months, but the starting date depends on what happened. If you suspect a violation, get help early so you can save evidence and file on time.
Not necessarily. Consider workplace support, your organizing plan, and legal advice before you wait. National election results can show broad trends, but they cannot predict how your coworkers will vote.