On Wednesday, the Senate did not confirm the re-appointment of current National Labor Relations Board (NLRB) Chairman Lauren McFerran, a Democrat, whose term will expire December 16. President Biden’s nomination and attempted re-appointment of Chairman McFerran failed on a procedural vote when a vote to end debate and consider the nomination failed. Following this vote against ending debate, which resulted in the failure of McFerran’s nomination, a scheduled vote on another of Biden’s NLRB nominations, a Republican nominee, was withdrawn.
As a result, the NLRB will have two open seats when President-elect Trump takes office, allowing Trump to nominate two persons to the NLRB, both of whom can be and (most likely) will be Republicans. Upon confirmation of those nominees, the NLRB will shift to a Republican majority. It is likely that upon the Republicans becoming the majority, the NLRB will begin reversing various pro-union decisions the Biden NLRB handed down during the last four years, especially in those decisions in which the Republican members issued lengthy and robust dissents.
It is not clear at this time whom President-elect Trump will appoint or what cases the new NLRB will focus on in the short term, but a flurry of action is expected, nonetheless.
If you have any questions about how the upcoming changes to the NLRB’s composition and priorities may impact your business, please contact the authors.