Top Five Labor Law Developments for March 2026

1. President Donald Trump appointed current Member James Murphy as chairman of the National Labor Relations Board. In this role, Murphy will oversee the Board’s adjudicative and administrative functions, including hiring administrative law judges and serving as the Board’s representative to Congress. Chairman Murphy, who previously spent 47 years serving the Board before retiring, returned from retirement to assist in reducing the case backlog. Since his swearing-in as a member, the backlog decreased from 591 in January to 482 by March of this year. He previously served as chief counsel to former Chairman Marvin Kaplan and worked during a period of significant backlog under the Obama Administration. Chairman Murphy’s term expires in December 2027.
    
2. The U.S. Court of Appeals for the Sixth Circuit held that the Board exceeded its authority by establishing a new representation standard through adjudication that conflicts with governing precedent. Brown-Forman Corp. v. NLRB, Nos. 24-2107/25-1060 (6th Cir. Mar. 6, 2026). The court vacated a bargaining order requiring an employer to recognize a union that lost an election following the employer’s pre-election unfair labor practices. Although it acknowledged the Board’s authority to develop policy through adjudication, the court found that the Board previously improperly displaced the framework established in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), with a new standard that was unnecessary to resolve the case, effectively lowering the threshold for union recognition. For employers in the Sixth Circuit, this decision limits the Board’s ability to issue a bargaining order when employers commit unfair labor practices after a union has sought recognition as the bargaining representative of the employer’s employees. The decision signals possible increased judicial scrutiny of significant policy changes by the Board. It remains to be seen whether other circuits will reach similar outcomes. 
    
3. While the Board has resumed issuing decisions, employers should not expect an immediate wave of changes through rulemaking or sweeping reversals. Although the Board has authority to initiate rulemaking consistent with the views of the majority of its members, it will likely continue its long-standing practice of declining to revise precedent through rulemaking without the support of three members. Until three Republican members are in place, employers can expect a gradual return to employer-friendly standards with incremental changes made through adjudication rather than aggressive policy changes. Bloomberg Law reported that Board members also expressed reservations about rulemaking at an ABA conference, with Member David Prouty noting that the process is significantly time-consuming and Chairman Murphy stating it is ill-suited for an adjudicatory agency. Chairman Murphy, however, left open the possibility of reconsidering rulemaking in a future case without specifying when. 
    
4. Washington State enacted a “trigger” law providing the state’s Public Employment Relations Commission (PERC) authority over private sector labor relations when the Board fails to act. Washington HB 2471. The statute establishes a contingent collective bargaining framework under which the state labor board assumes jurisdiction if the Act no longer preempts state law or if the Board declines or lacks jurisdiction to act. If triggered, PERC would oversee representation proceedings, ULP adjudication, and contract dispute resolution. Courts have temporarily enjoined similar laws in California and New York on federal preemption grounds. The Washington law takes effect June 11, 2026, but the Board is expected to challenge the statute on federal preemption grounds as it has in California and New York.
    
5. The Board declined to revisit precedent barring unions that represent both guards and non-guards from intervening in representation elections involving guard-only units. Paragon Systems Inc., 374 NLRB No. 73 (March 25, 2026). Board precedent interprets Section 9(b)(3) of the Act to prohibit not only certification of mixed guard-nonguard unions but also their participation in guard-only elections, based on concern over divided loyalties during labor disputes. In a split decision issued without substantive explanation, the Board rejected the union’s request to reconsider that interpretation and affirmed the Regional Director’s denial of the mixed union’s motion to intervene. 

Please contact a Jackson Lewis attorney with questions about these developments.