Mayer's Concurrence Says What Every American Worker Already Knows

In October 2023, Amy Smith filed a petition to decertify her union at a Starbucks in Oklahoma City. It was dismissed two months later. She asked to have it reinstated. Denied. She still hasn't gotten a vote.

A few weeks ago, the NLRB upheld that outcome, but one member made sure his objection was on the record.

In a concurrence, NLRB member Scott Mayer wrote: "I have serious concerns about the way in which that precedent can deprive employees for years of any opportunity to exercise their right freely to select, reject, or change their bargaining representative."

He was referring to Rieth-Riley Construction Co., a 2022 Biden-era precedent that allows a worker's decertification petition to be dismissed, and kept dismissed, whenever unfair labor practice allegations are pending. No vote. No timeline. Workers simply wait while the legal process drags on indefinitely.

The numbers tell the story. Workers in the original Rieth-Riley case filed their petitions in 2020. Those petitions remain dismissed to this day. Smith's petition has been in limbo for over two and a half years, with no hearing date in sight on the underlying case.

As Mayer put it, "the open-ended dismissals approved in Rieth-Riley have deprived employees in case after case of any opportunity to vote in a Board-conducted election for years."

This is blocking charges in practice. When workers want out, union leadership files unfair labor practice charges, and the clock freezes. No deadline. No accountability. No vote. The Biden NLRB didn't invent this tool, but through its 2024 Fair Choice–Employee Voice Final Rule, it handed union leadership a more powerful version of it in the final months of the administration. As former NLRB Member Marvin Kaplan warned in his dissent, the rule "improperly prioritizes the interests of unions over that of employees."

Mayer and Chairman Murphy applied Rieth-Riley here only because, as Murphy noted, there isn't yet a three-member majority to overturn it. But Mayer was clear: an assessment of whether the precedent strikes the right balance between labor stability and giving effect to workers' actual wishes is "long overdue."

He's right — and the board doesn't have to wait to act. President Trump has nominated James Macy to fill the board's remaining vacancy, which would give Republicans a 3-1 majority and the votes needed to overturn Biden-era precedents like Rieth-Riley. That confirmation is incredibly important, but it isn't a prerequisite for action. As former NLRB Chairman Marvin Kaplan has noted, a 2-1 majority is sufficient to pursue reform through formal rulemaking — a durable, transparent process with public comment and judicial review built in. Mayer and Murphy have that authority right now.

The right to leave a union should be as real and as accessible as the right to join one. Workers across the country (behind 32 open blocked cases in 16 states, some dating back nearly two decades) are counting on the board to act. The authority is there. The moment is now.