We are less than one week from Election Day. Regardless of the outcome, the winner is likely to have considerable impact on the National Labor Relations Board and its rules and regulations. Interpretation and enforcement of the National Labor Relations Act, and other labor and employment laws and regulations, can dramatically shift based on the political alignment of the Presidential administration.
NLRB in the balance
The Board when filled has five Members, each requiring Senate confirmation, one designated by Presidential appointment as Chairman. Board seats have varying five-year terms, with historical protocol giving three seats and the Chairmanship to the political party of the President and two seats to the minority party.
Three of the current Members, including the Chairman, are Democrats, and one is a Republican. One seat that’s been slotted for a Republican has been left open without a nomination since 2022. Chairman Lauren McFerran’s term ends in roughly six weeks, on December 16. It is not clear whether President Biden would attempt to nominate a successor before his own term ends. Thus, regardless of who is elected, the next President may be able to nominate a successor. Whether that nominee is confirmed by the Senate is an open question.
The Board’s prosecutor for violations of the Act, called the General Counsel, has a four-year term, but the courts have found that the General Counsel serves at the pleasure of the President. So the newly-elected President...
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