The National Labor Relations Board (NLRB) swore in two members on August 10, leaving the Board with one empty seat and its Republican majority intact.
Marvin E. Kaplan, a Republican beginning a new term after serving on the NLRB since August 2017, and Lauren M. McFerran, a Democrat who is also a veteran of the Board having held a seat from December 2014 through December 2019, were both confirmed by the Senate on July 29. Kaplan’s new term runs through August 27, 2025. McFerran’s term expires December 16, 2024.
The NLRB now has three Republican members—Chairman John F. Ring, William J. Emanuel, and Kaplan. McFerran is the only Democrat, and the remaining Democratic seat is open.
President Donald Trump in 2018 nominated former NLRB Chairman Mark Gaston Pearce for the other Democratic seat on the five-member Board, but that nomination failed to win Senate confirmation, and he withdrew his name from consideration in 2019. Trump hasn’t nominated anyone else for the seat.
The NLRB can issue decisions as long as it has a quorum of at least three members. It hasn’t had its full complement of five members since August 2018, when Pearce’s term ended.
What to Expect
“The Board has been moving swiftly this year to overturn Obama-era decisions and regulations, which employers can expect to continue through the remainder of the year especially if President Trump is not reelected in November,” Beecher says.
Ryan J. Funk, an attorney with Faegre Drinker in Indianapolis, Indiana, also says the latest action on NLRB membership allows it to continue its business as usual. Had the Senate not reconfirmed Kaplan to stay on the Board and not confirmed McFerran for a new term, the Board would have shrunk to two members after August 27, when Kaplan’s current term ends.
With Kaplan and McFerran starting new terms, “for now, there should be no substantive change,” Funk says. “The real impact on employers would come if the Senate confirmed a Democrat to fill the fifth seat.”
Funk says he hasn’t heard of any candidates being put forward to fill the fifth seat, but if that happened, “it becomes possible to have a Democrat-majority panel when the Board delegates its decision-making authority to a panel of three of the five members.”
“And if the Senate confirms a second Democrat before Member Emmanuel’s term ends on August 27, 2021, a vacancy then would leave the Board with a 2-2 split,” Funk says.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.