Daniel J. Sobol, Brandon S. Shemtob, and David G. Rodriguez
The National Labor Relations Board’s (“NLRB”) General Counsel, Crystal Carey, drew applause, as well as some criticism, earlier this year when she departed from her predecessors by declining to issue a “Mandatory Advice Memo”—a memorandum that would have outlined her litigation priorities and identifying caselaw she wished to overturn by instructing the NLRB’s regional offices to submit all such cases to the agency’s Division of Advice. Instead, in January 2026, she issued a memorandum declaring her top priority as tackling the NLRB’s historic case backlog.
Timed to coincide with the recent confirmation of James Macy as the Board’s third Republican appointee, it appears that the General Counsel is prepared to declare a victory, of sorts, over the federal watchdog’s backlog and to press forward with efforts to overturn Union-friendly precedent—much of which was issued during the latter half of the Biden Administration. Traditionally, the NLRB’s five-member quasi-judicial Board overturns prior precedent where it has three votes in favor of doing so. Member Macy’s confirmation earlier this month provided the Board with just such a majority.
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Protection of the workforce is a major focus of the Biden Administration. Rather than attempting to pass new legislation or amend existing statutes, the path of least resistance in the short term appears to be the use of executive orders to implement or, as here, rescind Trump Administration Executive Orders and put into effect many of the same policies as the Obama Administration. The starting point for the Biden Administration is to take the steps to implement rules with respect to the federal workforce and the workforce performing federal government contracts.