This week, President Trump re-nominated two NLRB members for new terms on the Board, taking his first steps to fill the Board, which currently has only three members.
The NLRB is typically made up of five presidentially appointed members serving staggered five-year terms. Thus, one member’s term ends each year. The NLRB has not been at its full complement of five members since August 2018, when Obama appointee and former NLRB Chairman Mark Gaston Pearce’s term ended.
President Trump re-nominated Pearce upon the expiration of his term, respecting the Board’s ideologically-balanced tradition that the president reserve two spots on the Board for the minority party. However, Pearce’s nomination did not progress in the Senate and the two-term member decided to move on.
In December 2019, the sole remaining Obama appointee, Lauren McFerran, saw her term end. This past week, Trump re-nominated McFerran to serve another five years. He also re-nominated Marvin Kaplan, who was appointed by Trump in August 2017, to a new full term. Kaplan’s term is set to expire in August 2020 after three years. The terms run by the “seat” the Board member is appointed to, so oftentimes a member fills a seat with less than five years remaining on the term.
Given the general gridlock surrounding most of the president’s nominees, he may be attempting to secure two safe and politically balanced nominations so as to preserve a 3-1 Board majority before the general election in November. However, even if both are confirmed, one vacant seat will remain.
We will see if and when these seats are confirmed. In the meantime, the Board continues to issue decisions with a three-person lineup of Trump nominees: Kaplan, Chairman John Ring, and William Emanuel.