The National Labor Relations Board, the main labor law enforcement agency, is on track to be completely controlled by Republicans in December. The five-seat board currently only has four members, and the term for its lone Democrat, Lauren McFerran, expires on Dec. 1.
While the situation would be unprecedented, a three-Republican board would still be able to function and rule on cases involving disputes between businesses and unions, if necessary. The board issued rulings in 327 cases last year involving unfair labor practices, disputed elections, and other union-management disputes.
It is not a situation that the current board majority is eager to find itself in, however, fearing that it will simply look bad to have only members of one party making the decisions. NLRB members are hoping that the White House and the Senate can reach an agreement on either replacing McFerran or extending her term. In the meantime, they’re trying to get as much done as possible before McFerran might be forced to step down.
“We think it is good for the board to have members appointed by both parties,” said an official at the board who requested anonymity. “While we are not involved in these discussions, we hope that the White House and the Senate can work together to achieve such a result. We anticipate a busy fall as we work to issue cases and promulgate rules while McFerran is still a member of the board.”
The NLRB operates by simple majority, and its members are nominated by the White House and confirmed by the Senate. By tradition, the White House gets to pick the majority and lets the top senator for the other party pick the other two. Nevertheless, the White House could nominate all members of one party if it chose, noted Wilma Liebman, a former NLRB chairwoman during the Obama administration and currently an adjunct professor at New York University School of Law.
“The board needs a quorum to operate. And three members are a quorum,” Liebman said. “There are no statutory commands, but there is a long historic tradition of three members from the president’s party and two from the opposition.”
Having a board with members from just one party, Liebman said, “would, I believe, be unprecedented, very bad precedent to make, and ugly politics.”
Avoiding that situation would require the White House and Senate Minority Leader Chuck Schumer of New York to reach agreement on how to handle McFerran’s seat and potentially the other empty one. There has been little apparent communications between the two sides on the matter and neither would speak on the record to the Washington Examiner.
The NLRB’s other members are Chairman John Ring and members Bill Emanuel and Marvin Kaplan.
The board has been active in the last two months, putting out some controversial rulings that have been applauded by business and slammed by unions. It ruled in August that misclassifying an employee as an independent contractor is not itself a violation of federal law. It ruled earlier this month that businesses can ban nonemployee union activists from their property and made it easier for employers to alter provisions in a labor contract without the union’s permission. It has also proposed changing the rule on how profane, verbally abusive, and racially insensitive labor activists can be and still receive protection under the National Labor Relations Act.
