In a package deal, the U.S. Senate confirmed the appointments of two members to the National Labor Relations Board (“Board” or “NLRB”). Lauren McFerran, who previously served as a member of the NLRB for five years until her term expired on December 16, 2019, will rejoin the current Board as its only Democrat. Current Republican Board member, and former Chair, Marvin Kaplan was appointed to a new term. His term was set to expire on August 10, 2020. His new appointment will now expire in August 2025.
Member McFerran, who was renominated by President Trump shortly after her term expired in December 2019, will occupy one of the two open Democrat seats and bring the total number of Board members up to four. Traditionally, three Board seats are held by members of the President’s party and two are reserved for the minority party. There is currently no other Democratic nominee pending for the remaining open seat.
Even with these most recent appointments, Republicans still comprise the majority of the Board. The two other Republic Board members, William J. Emanuel and chairman John F. Ring, were appointed by President Trump in 2017 and 2018, respectively. Their terms will expire in 2022 and 2023. Thus, it is likely that the Board will have a Republican majority until at least 2022 regardless of who is in the White House.
Member McFerran has written a number of dissents to controversial decisions and regulatory initiatives made by the Board’s Republican majority, including such important topics as assessing joint employment, the standard to evaluate whether an employer’s unilateral change violates the NLRA, and worker misclassification. We anticipate this trend will continue for the foreseeable future.
While the most recent appointments will ensure that the Board has enough members to continue to operate, the outcome of the upcoming presidential election will certainly have an impact on the composition of the Board in the years to come.