Most employers are aware that the President appoints the five members of the National Labor Relations Board with the advice and consent of the Senate and that, by law and tradition, a majority of the Board’s Members are from the President’s political party. As we saw in 2021, following his victory in the 2020 election, President Biden used his appointments to create a Democratic majority on the Board, and that majority has significantly reshaped the contours of labor law in favor of unions. With a presidential election looming, employers might assume a Republican victory would result in a quick reversal of many of the current Board’s decisions. Due to maneuvering by Democrats, however, that may not be the case.
The Board currently has three Democratic members and one Republican member. The other Republican seat has been vacant since late 2022, when John F. Ring’s term expired. In Spring 2023, President Biden reappointed Gwynne Wilcox (a former union-side attorney) to serve a full five-year term on the Board. Customarily, the Senate would have considered a Republican nominee to fill Ring’s seat at the same time, but that did not happen. Instead, the Senate voted to confirm Wilcox to a full term, which expires in August 2028, without considering a Republican to fill the Ring’s vacant seat. This resulted in the current 3-1 Democrat majority.
Fast forward to August 2024. The term of Chairwoman Lauren McFerran, a Democrat, expires on December 16, 2024. Senate Democrats are moving to confirm McFerran to another term. Last month, the Senate Health, Education, Labor and Pensions Committee voted 11-10 along party lines to advance McFerran’s nomination to a vote by the full Senate. The HELP Committee also voted 18-3 to advance the nomination of management-side attorney Joshua Ditelberg to fill Ring’s seat, at long last. Democrats are presenting this as a bipartisan package deal, but if McFerran is confirmed for another term, it will cement a Democrat majority on the Board until August 2026, when Member David Prouty’s term expires. It is unclear whether Democrats have the votes to confirm McFerran, but if they are able to do so, employers will be faced with a majority Democrat Board until then, even if Donald Trump is elected.
They say elections have consequences. Sometimes, they just take a little longer to kick in.