Manchin and Sinema Block Democratic Majority at NLRB

Republicans will control the Board soon after January 20.

Senators Joe Manchin and Kyrsten Sinema voted to block the reappointment of Lauren McFerran to the National Labor Relations Board yesterday. Had McFerran been reappointed, her term would have run until December 16, 2029. This would have ensured that Democrats make up the majority of NLRB members until August 27, 2026 when David Prouty’s term expires.

The NLRB membership currently consists of three Democrats, one Republican, and one vacant seat. With the blocking of McFerran’s reappointment, this will fall to two Democrats, one Republican, and two vacancies after December 16. This means that when president-elect Trump takes office on January 20, he will be able to immediately fill two vacancies with Republican appointees, bringing the NLRB’s composition to three Republicans and two Democrats. Trump will also immediately be able to replace General Counsel Abruzzo with a Republican appointee.

This failed vote will have a significantly negative effect on the development of NLRB law and the rights of workers and unions. When Republicans control the NLRB, they generally use that control to develop Board law in a way that is favorable to employers and unfavorable to employees. This is done by establishing new precedent or reversing old precedent in a case-by-case fashion. Because McFerran was not reappointed, the Trump Board will have four years of cases to work with rather than than two-and-a-half years of cases to work with.

Of course, it’s possible that Trump would have fired one or more Democratic NLRB members on January 20 in order to create the vacancies needed to appoint a Republican majority. Firing NLRB members without cause is prohibited by the NLRA, but one of the conservative legal theories of the moment is that this sort of prohibition is unconstitutional. The Trump administration also seems eager to push the legal envelope in this respect. With McFerran out, this particular constitutional clash won’t even be necessary.