Democrats now have a 3-1 edge on the federal labor board with Republican member John Ring’s term expired—but don’t expect his seat to get filled anytime soon.
Management-side and union advocates both expect the Biden White House to leave the slot vacant for the time being to avoid a potential nomination logjam on Capitol Hill, particularly if Ring’s replacement isn’t packaged with a Democratic nominee to balance out opposition. Dec. 16 was Ring’s last day, while the term for Democratic member Gwynne Wilcox’s ends in August 2023; Wilcox is expected to be renominated.
The prediction underscores how tangled politics at the National Labor Relations Board, which regulates unions in all private workplaces, has become over the last decade. Both parties have left seats unfilled through the Obama and Trump years to gain an an even greater majority in key decisions.
Republicans held a 3-1 majority for more than a year during the Trump administration, and 3-0 majority for almost nine months in 2020 and 2021. Democrats similarly had a 3-1 advantage for two years and unilateral control for a time in 2012 and 2013 as Obama battled in the courts over his use of recess appointments to fill empty seats.
Leaving the NLRB split 3-1 ensures each three-member board panel—which decides most non-precedential cases—is controlled by the majority party. For the current board, that will likely mean more pro-union decisions, as it eliminates the chance for rulings in which two Republican members determine the outcome over a Democratic member’s dissent.
It also reduces delays in issuing precedential decisions, since there’s only one member who’s likely to slow the process by writing lengthy dissents. That could boost the Biden board’s output of decisions remaking labor law, which were lagging before the spurt of major rulings in Ring’s last week.
Democrats will have an expanded majority in the Senate next year, meaning in theory they’ll be able to confirm nominees without a single Republican vote. But worker advocates worry that Republicans could still throw up procedural roadblocks to stall Wilcox’s nomination late if they don’t pair her with a Republican nominee.
“It would be political negligence to do a one-off and not hold Republicans to account,” said Celine McNicholas, chief lobbyist for the left-leaning Economic Policy Institute who previously served as director of congressional and public affairs for the NLRB. “You lose any kind of leverage with Republicans if you move Ring’s seat without moving Wilcox’s seat. You essentially give Republicans an advantage.”
Those on the business side say they’ll have a hard time getting a Republican nominee confirmed solo without a Democratic nominee as a carrot for senators, though they’re not necessarily in favor of leaving the seat vacant.
“It makes sense to pursue a package sooner rather than later,” said Roger King, senior labor and employment counsel for the HR Policy Association, an employer group.
The bureaucratic quirks of the NLRB are entwined with its politics. The clock on each five-year seat runs continuously, regardless of whether the seat is filled or not. Wilcox, for example, joined after her seat had been vacant for three years, and must be re-confirmed next year.
The system discourages the majority party—which traditionally holds three seats on the five-member panel—from filling vacancies with haste. It’s not unlike a football team leading in the fourth quarter and intentionally burning time off the clock to preserve its advantage.
The board can operate with as few as three members, which is what happened from December 2019 to August 2020 when there were three Republicans and no Democrats. Republicans issued employer-friendly rules related to union elections and a decision that exempted faculty at nonprofit religous colleges from federal union rights without so much as a dissent.
The NLRB didn’t regain a Democrat until Trump re-nominated Republican Marvin Kaplan, who was confirmed in a package with Lauren McFerranin July 2020. President Joe Biden named McFerran NLRB chair in January 2021.
Similarly, the Obama White House left a seat unfilled when Republican Harry Johnson left in 2015. It sat vacant for two years, until Kaplan was confirmed in 2017.
A White House spokesperson didn’t immediately respond to a request for comment on Biden’s plans for Ring’s seat.
‘Variety of Perspectives’
McFerran acknowledged in a statement to Bloomberg Law that she and Ring had “our share of policy disagreements,” but that his seat should be filled swiftly for the good of the board.
“Anyone who has served on the board would acknowledge that the board functions best with a full five members,” McFerran said. “Vacancies impact our ability to process cases efficiently, and our deliberations benefit tremendously from the variety of perspectives that the board was designed by Congress to enjoy. It is absolutely critical that both this vacancy and upcoming vacancies be filled quickly to allow the board to continue fulfilling our important statutory mission.”
Reducing the GOP minority to two members could make it easier for the Democratic majority to accomplish its goals, said Michael Lotito, co-chair of Littler Mendelson PC’s Workplace Policy Institute. For example, it will take less time to issue opinions in contentious cases because only one member—Kaplan—will be there to write dissents.
“The most likely outcome is that the seat remains open until August, when the administration will package a Republican nominee with Wilcox,” Lotito said.
Such a package could eliminate the need for a committee hearing and could allow the nominees to sail through without a formal roll call vote.
King, the HR Policy Association attorney, said the business lobby would welcome Ring’s renomination, but Ring has expressed little interest and didn’t immediately respond to a request for comment for this story.
“It would be an excellent move, but I don’t think it’s going to happen,” he said.
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