A fully constituted NLRB is comprised of five members. Decisions are typically issued by three-member NLRB panels. Three is also the minimum number of members the NLRB must have to issue a decision. However, the NLRB will only overrule existing precedent where it has at least three members ruling in favor of a change. By custom, the NLRB will only overrule existing precedent when the NLRB has at least four members and at least three of them vote to overrule the extant precedent. That said, the NLRB has on a number of occasions operated with fewer than five members and even been reduced to just two members for a time during the Obama Administration. With just two members, the NLRB cannot issue a decision and the Agency experiences a backlog of work.

A full-term for an NLRB member is five years with the terms staggered such that one member’s term expires each year. The party holding the White House typically has a three to two advantage on the NLRB.   Thus, when a Republican is in the White House, the NLRB has a more management-friendly bent. When a Democrat is in the White House, the NLRB has a more union-friendly bent. As a result, NLRB law at times changes when the White House changes parties.

Presently, the NLRB has five members, but it will likely soon have four as Member Mark Pearce’s term is set to expire on August 27, 2018. In fact, certain employer groups have informed the White House they do not want Pearce nominated for another term. As NLRB chairman during the Obama Administration, Pearce led an aggressively union-friendly NLRB that, among other things, expanded section 7 rights for employees, introduced quickie elections, approved of micro-units, and infringed on employer property rights all with goal of aiding union organizing. Employer groups are concerned that should democrats regain the White House in 2021, Pearce could be appointed chairman again and resume his aggressive and pro-labor re-interpretation of the NLRA.

Now, President Trump could simply appoint and nominate a less objectionable candidate to fill Pearce’s seat, but what is more likely is that President Trump will wait. Leaving Pearce’s seat unfilled means there will only be one labor-side member on the NLRB. This means there will be no three-member panel that would likely issue labor friendly decisions. There is no downside to waiting as the NLRB by custom will still be able to reverse Obama era precedent that the Trump NLRB disagrees with provided all three management-side members agree the precedent should be reversed.

How long President Trump will wait is not clear. President Trump could wait until shortly before December 16, 2019 when the other labor-friendly member, Lauren McFerran’s term expires, or the President could wait until management-side member Marvin Kaplan’s term expires on August 27, 2020.   The third option is that President Trump could simply refuse to appoint another member to the NLRB during his first term. Should he choose the last option, the NLRB would not be able to iissue a decision after August 27, 2020 as the NLRB would be reduced to just two members. This means, his Administration would be unable to overrule any further decisions the management-side NLRB members wish to overturn.

My personal belief is that President Trump will take action sometime shortly after Member McFerran’s term ends on December 16, 2019.   My reasons are twofold. First, President Trump may want sufficient time to ensure that the Board does not revert to two members when Member Kaplan’s term expires on August 27, 2020. Should this happen, the Board would not be in a position to reverse remaining Obama era precedent that employer groups wish to be reversed.. Second, by having two labor-side seats vacant and one management-side seat nearing vacancy, President Trump can horse trade with Senate Democrats to secure the appointment of two labor-side members least objectionable to employer groups while possibly extending Member Kaplan’s tenure on the NLRB for another term.

Only time will tell what happens. Stay tuned for further developments.


Chip Zuver is an associate in the firm’s Los Angeles office and a former NLRB attorney.