Upcoming Changes to the National Labor Relations Board

Not long after the November elections, we discussed potential changes that could come at the National Labor Relations Board (NLRB or Board) after inauguration day on January 20, 2025. Although it is a virtual certainty that President-Elect Trump will very quickly remove Jennifer Abruzzo from her position as the NLRB’s current General Counsel (the agency’s chief prosecutor who selects the cases to be heard by the Board), it was unclear whether the composition of the five-member NLRB would change in early 2025 or whether a flip in the Board majority to Republican appointees would be delayed until August 2026.

We now know the answer to that question.

Current NLRB Chairman and Democrat appointee Lauren McFerran’s term expires on December 16, 2024. On May 23, 2024, President Biden renominated Chairman McFerran for another term and simultaneously nominated Republican management-side attorney Josh Ditelberg to fill a currently vacant Republican slot on the Board. Because Board Members serve staggered terms, had the Senate confirmed Chairman McFerran for another term, another vacancy on the Board would not come up until August 2026, meaning the NLRB would retain its Democrat-appointed majority – and thereby continue to advance the pro-labor, pro-employee agenda that has hallmarked the Biden Administration-era NLRB – well into President-Elect Trump’s next term.

But that didn’t happen. Instead, on December 11, 2024, the Senate voted 49-50 not to advance Chairman McFerran (or Mr. Ditelberg’s) nomination. This outcome was largely driven by “no” votes from independent Senators Kyrsten Sinema (I-AZ) and Joseph Manchin (I-WV). As a consequence of this vote, Chairman McFerran’s term on the NLRB will end on Monday, December 16, 2024. The Board will still have a Democrat majority on that date; Members Prouty and Wilcox are Democrat appointees and Member Kaplan is the sole current Republican appointee. However, President-Elect Trump will have the opportunity to fill two open Member slots on the Board after his inauguration. With an incoming Republican-majority Senate, the odds favor a quick confirmation process for any newly nominated potential Board Members, which most presume will include a re-nominated Mr. Ditelberg.

As a result, we should have a Republican-majority Board – comprised of Member Kaplan, likely Mr. Ditelberg, and a yet-to-be-nominated Republican Member, along with current Democrat-appointee Members Prouty and Wilcox – early in 2025. Combined with a change in NLRB General Counsel, we can safely assume the new Republican Board and General Counsel will quickly unwind many of the Biden Administration-era NLRB’s more controversial decisions, including its notable decisions in Stericycle, which changed the standard for review of employer rules and policies, and Cemex, which concocted a union-friendly procedure for recognition without any election.

Thus, change is coming. We’ll keep you updated as the NLRB nomination process unfolds.