Potential NLRB and Labor Law Shifts After 2026 Midterms: What Changes

Takeaways

• The Republican NLRB majority has about 13 months to reverse precedent through adjudication before Chairman James Murphy’s term expires. 
• The bipartisan Faster Labor Contracts Act has a clearer path forward, while the union-backed PRO Act and sectoral bargaining remain key labor reform priorities. 
• Democratic control of both chambers of Congress could accelerate labor law reform, agency oversight and employer scrutiny through hearings, investigations and demands for extensive documents and testimony.

Related links

• Senate Confirms Macy + Prouty to Labor Board, Giving Republican Members Critical Three-Vote Majority
• Update: U.S. Senate Restores NLRB Quorum
• GC 26-04

Article

The effects of the 2026 U.S. midterm elections extend beyond control of Congress to the rules governing workplaces and collective bargaining relationships.

Although the election results will not immediately change the National Labor Relations Board (NLRB), Democratic control of the Senate could shape the Board’s ability to revisit precedent and advance legislation establishing deadlines and binding arbitration on first-collective bargaining agreement negotiations.

Other legislative proposals and heightened congressional oversight could also have significant implications for employers.

What are the effects on federal labor law? What developments should employers monitor as they plan ahead?

Why Senate Control Matters

Significant changes in federal labor law often arise from NLRB decisions rather than amendments to the National Labor Relations Act (NLRA). Democrats have secured control of both chambers of Congress and will hold at least 55 Senate seats in 2027, including two Independents who caucus with them. As of Nov. 13, 2026, one Senate race remained uncalled.

Control of the Senate matters for two reasons:

1. The majority party controls the Health, Education, Labor, and Pensions (HELP) Committee and largely determines which nominations and legislation receive floor consideration. 
    
2. NLRB nominations generally require only a simple majority for confirmation, while most legislation needs 60 votes to overcome a filibuster. Senate control therefore has more immediate implications for Board appointments than for changes to the NLRA itself.

Republican Board’s Window to Change Precedent

The Board currently consists of Republican Chairman James R. Murphy, Republican Members Scott A. Mayer and James R. Macy, and Democratic Member David M. Prouty. One seat remains vacant.

Macy’s arrival in August 2026 gave Republicans the three votes traditionally required to overturn existing Board precedent. However, Chairman Murphy’s term expires on Dec. 16, 2027.

General Counsel Crystal Carey’s August 2026 memorandum, GC 26-04, identified 13 areas of Board precedent she believes warrant reconsideration. In seven, she had already advanced arguments in pending matters, including challenges to standards governing severance agreements, workplace rules, mandatory unionization meetings, and bargaining waivers. She also identified six additional areas for future challenges when appropriate cases arise, including bargaining orders, bargaining obligations before unilateral changes, protected concerted activity standards, and expanded remedies. The list is not exhaustive, and the Board could revisit other areas not identified in the memorandum, including independent contractor classification, the test for determining bargaining units, blocking charge procedures, and union election rules.

With Democrats in control of the Senate, it is nearly certain the Senate will not confirm any Board members in 2027 and 2028. Therefore, Chairman Murphy and his Republican colleagues have approximately 13 months to change precedent through adjudication.

To date, the Board has addressed only one of the issues identified in the GC’s memorandum. To address the remaining 12 before Chairman Murphy’s term expires, the Board would need to issue approximately one significant precedent-changing decision each month. That is an ambitious pace for an agency that must identify suitable cases, consider developed records and legal arguments, and manage its regular caseload, not to mention potentially significant rulemaking on matters outside the memorandum.

If Murphy’s term expires without Senate confirmation of his reappointment or a Republican successor, and the fifth seat remains vacant, the Board would retain a quorum, but Republicans would lose the three votes traditionally needed to overturn precedent through adjudication. The prospect of losing that third vote places considerable pressure on the current majority to prioritize the precedents it seeks to revisit.

However, the Board could still change precedent through rulemaking with only two affirmative votes. The Obama-era Board had dropped the traditional three-member tradition for rulemaking. Members Mayer and Macy can address blocking charges and election procedures in 2028.

Senate Control and Board’s Future Composition

It is almost certain that there will be no NLRB confirmations in 2027 or 2028. Consequently, the Board is likely to fall to a 2-1 split when Murphy’s term expires in December 2027.

Board tenure also carries new uncertainty. In Trump v. Slaughter, No. 25-332 (June 29, 2026), the U.S. Supreme Court overruled Humphrey’s Executor and invalidated statutory removal protections for members of the Federal Trade Commission. The Court subsequently declined to review Wilcox v. Trump, No. 26-5 (Oct. 19, 2026), leaving undisturbed the appellate ruling permitting President Donald Trump’s removal of former NLRB Member Gwynne Wilcox.

If a Democrat wins the next presidential election, the incoming administration will likely remove Board members upon taking office, potentially leaving the NLRB without a quorum for a period of time.

Labor Law Reform: FLCA and Other Proposals

In 2027, organized labor is likely to pursue its traditional legislative priorities, including the Faster Labor Contracts Act (FLCA), the Protecting the Right to Organize (PRO) Act, and the LET’S Protect Workers Act. At the same time, however, many in the labor community are already discussing sectoral bargaining as a comprehensive alternative to traditional labor law reform.

The FLCA would substantially alter first contract bargaining by:

• Establishing fixed deadlines for negotiations; and 
• Providing for binding arbitration when the parties cannot reach an agreement.

For employers, the FLCA could significantly change bargaining strategy by shortening the negotiation period and allowing arbitrators to determine economic and other contract terms without the parties’ agreement. It could also make union organizing more attractive because a first contract would be all but assured.

In June 2026, the House passed its version of FLCA, H.R. 5408, by a 230-193 vote, with 20 Republicans joining Democrats. The Senate companion bill, S. 844, introduced by Republican Sen. Josh Hawley (MO), has bipartisan sponsorship but remains before the HELP Committee. Sen. Hawley is likely to become the ranking member of the Senate HELP committee in 2027. If selected, his support for the legislation could limit opposition within the committee and accelerate the FLCA’s path to floor consideration.

Teamsters General President Sean O’Brien has said that 55 senators support the FLCA. If accurate, that total would include at least eight Republicans in the current Congress. Although it is unclear how many of the Republican supporters lost their seats in the midterm elections, Democrats’ control of the House and at least 55 Senate seats gives the FLCA its clearest path yet to the president’s desk.

President Trump has shown strong interest in working with organized labor. He recently expressed interest in working with the new Democratic congressional majority. Whether that cooperation will extend to the FLCA remains uncertain, but a presidential veto is far from assured.

In addition to the FLCA, organized labor continues to support the PRO Act and LET’S Protect Workers Act.

The PRO Act would:

• Impose civil penalties and establish a private right of action for certain NLRA violations; 
• Broaden employee and joint employer coverage; 
• Prohibit compulsory antiunion meetings; 
• Expand strike and secondary-activity protections; and 
• Override state right-to-work restrictions on union security agreements.

The LET’S Protect Workers Act would create NLRA civil penalties and increase penalties for violations of wage and hour, child labor, workplace safety, and other employment laws.

Both the PRO Act and LET’S Protect Workers Act were identified as AFL-CIO priorities in 2026 and are likely to receive floor votes in 2027.

Beyond these legislative proposals, which raise significant concerns for employers, prominent figures in the labor community (including former NLRB General Counsel Jennifer Abruzzo) have recently advocated for sectoral bargaining as a comprehensive approach to labor reform.

Sectoral bargaining is collective bargaining in which unions negotiate wages and working conditions across an entire industry or sector, often with multiple employers or employer associations. The resulting standards may cover workers across participating businesses and, in some systems, extend throughout the sector, rather than being negotiated separately by each employer. Unions may then bargain for even higher wages and benefits from individual employers. The best example of this kind of bargaining is found in Europe. Although proponents argue that sectoral bargaining can reduce wage disparities, it certainly may limit employers’ flexibility in negotiating terms tailored to their individual operations.

Effective, coordinated opposition from the employer community will be essential to avoiding enactment of the FLCA and other broad labor law reforms that could substantially limit employer flexibility and create significant new bargaining obligations.

Congressional Oversight

Beyond advancing labor law reform, the new Democratic congressional majority could significantly expand oversight of federal agencies and employers.

The House Education and Workforce Committee and Senate HELP Committee may conduct investigations and hearings concerning agency policies, enforcement practices, and employer labor relations, including demands for documents and testimony.

Indeed, shortly after the election, Rep. Bobby Scott (VA) sent letters to the NLRB, Department of Labor, and other agencies reminding them of their obligations to preserve records in anticipation of increased congressional oversight.

Employers should prepare for the possibility of heightened scrutiny and potentially burdensome demands for documents and testimony.

Looking Ahead

In 2027, Congress is likely to give significantly greater floor consideration to union legislative priorities, while Board confirmations may stall, NLRB funding may increase, and oversight of the administrative branch federal agencies and private employers may expand.

Labor law changes, however, will not be limited to the federal level.

Democrats have also gained significant ground in state governments, potentially creating additional opportunities for organized labor to advance its legislative priorities. States could expand unemployment benefits during strikes and lockouts, increase the use of state labor-peace requirements, and impose labor-related conditions on licensing.

For employers, the midterm election results are only the beginning of a period of significant change. As developments unfold through Board appointments, NLRB decisions, and federal and state legislation, employers should assess the potential effects on their workplace policies, labor relations strategies, and compliance obligations.

Contact a Jackson Lewis attorney for guidance on how these developments may affect your organization.