2024 Election: New NLRB Faces, New Labor Rules?

by | Nov 4, 2024 | Cemex Decision, Labor Relations Ink, Labor Relations Insight, Leadership, Legal, News, NLRB, Politics, Trending

As of November 2024, the National Labor Relations Board (NLRB) comprises four members and one vacant seat, serving staggered five-year terms. The current composition is as follows:

Current Composition of the NLRB:

  • Lauren McFerran (Chair): Appointed in December 2014, reappointed in 2020, and designated Chair in January 2021. Her current term is set to expire on December 16, 2024.
  • Marvin E. Kaplan: Serving a term expiring on August 22, 2025.
  • David M. Prouty: Serving a term expiring on August 26, 2026.
  • Gwynne A. Wilcox: Serving a term expiring on August 27, 2028.
  • Vacant Seat: Previously held by John F. Ring, whose term expired in December 2022.

Recent Nominations:

To address the impending vacancy with Chair McFerran’s term nearing its end, President Biden nominated her for a third term on May 23, 2024. Simultaneously, he nominated Joshua L. Ditelberg, a partner at Seyfarth Shaw LLP, to fill the vacant seat.

Senate Proceedings:

Both nominations were referred to the Senate Committee on Health, Education, Labor, and Pensions. As of August 1, 2024, McFerran’s nomination was placed on the Senate Executive Calendar (Calendar No. 783), pending further action. The Senate has yet to confirm either nomination.

Implications for Labor Relations:

The composition of the NLRB significantly influences labor policy and the adjudication of labor disputes.  The pending nominations, if confirmed, would restore the NLRB to its full complement of five members, potentially impacting the direction of labor relations in the United States.

The pending nominations to the National Labor Relations Board (NLRB) carry significant potential implications for labor relations in the United States:

  1. Extended Democratic Majority: If Chair Lauren McFerran is confirmed for a third term, the NLRB will maintain a Democratic majority until at least August 2026, when Member David Prouty’s term expires. This extended majority could lead to the continuation and expansion of pro-labor policies and decisions.
  2. Policy Continuity and Expansion: Under McFerran’s leadership, the NLRB has issued rulings favoring union organizing and worker rights. Her reappointment could reinforce and further develop these policies, potentially affecting employer-employee dynamics.
  3. Impact of Judicial Scrutiny: Recent Supreme Court decisions, such as Loper Bright Enterprises v. Raimondo, have altered the landscape of judicial deference to federal agencies. This shift may subject NLRB decisions to increased judicial scrutiny, potentially challenging the Board’s authority and interpretations of labor law.

Impact of a Trump Election Win

If former President Donald Trump wins the upcoming election, the National Labor Relations Board (NLRB) will likely experience significant changes and a reversal in direction. A Trump administration could appoint new members as current terms expire, potentially shifting the Board to a Republican majority and reversing pro-labor policies implemented under the Biden administration. This shift may lead to a more challenging union organizing environment and alter the power balance between employers and employees, affecting workplace conditions and labor relations nationwide.

If former President Donald Trump is re-elected, he can remove the current NLRB General Counsel, Jennifer Abruzzo, at his discretion. The National Labor Relations Act does not provide tenure protections for the General Counsel, allowing the President to make such a decision. This precedent was established when President Biden removed former General Counsel Peter Robb upon taking office.  Therefore, it is plausible that a re-elected President Trump could choose to remove Abruzzo early in his term.

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