Ryan Funk, Indianapolis associate, was quoted in HR Daily Advisor in an article regarding the swearing in of two members of the National Labor Relations Board (NLRB), leaving one empty seat and the Republican majority intact. On July 29 the Senate confirmed Marvin E. Kaplan, a Republican who was already on the Board, to continue in that role with a new term. It simultaneously confirmed Lauren M. McFerran, a Democrat who had previously served on the Board, to return to the Board. The NLRB is governed by a five-person Board and a General Counsel, all of whom are appointed by the President with the consent of the Senate. Board members are appointed to five-year terms and the General Counsel is appointed to a four-year term.
The NLRB now has three Republican members with McFerran being the only Democrat; one seat remains open and the position of General Counsel will be up in 2021. Despite Kaplan and McFerran starting new terms, Ryan thinks there should be no substantive change for now. He explained that “[t]he real impact on employers would come if the Senate confirmed a Democrat to fill the fifth seat [because] it becomes possible to have a Democrat-majority panel when the Board delegates its decision-making authority to a panel of three of the five members.”