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The United States Senate on July 29 confirmed two nominees for the National Labor Relations Board (NLRB), incumbent Republican Member Marvin Kaplan and Democrat Member Lauren McFerran, who was previously confirmed to be a member of the NLRB in 2014 and served until her term expired last December.
The White House had announced the president’s intention to nominate the pair to the NLRB last March, and the Senate Committee on Health, Education, Labor and Pensions held a hearing for them on June 3.
Both nominees were confirmed by the Senate for their respective seats, which run on five-year terms with fixed termination dates, meaning one of the five Board members' seats expires each year. As such, Kaplan, who was confirmed by the Senate in August 2017 for a term expiring August 27, 2020, will retain his seat to serve a full five years to August 2025. McFerran will re-occupy the same seat she had previously held, with a term ending in December 2024.
Observers of labor policy cautiously expected Kaplan and McFerran to be confirmed together to prevent the NLRB from dropping to two members, which would deprive it of a quorum. Under Supreme Court precedent, that scenario would have prevented the Board from acting on any cases, as it had unlawfully attempted to do several years ago under the leadership of then-Chairman Mark Pearce. That situation gave rise to the landmark Noel Canning decision invalidating numerous NLRB cases decided without a valid quorum.
McFerran’s return to the NLRB also restores one Democrat on the Board, which until yesterday had consisted solely of three Republicans. With a 3-1 ratio, one hopes that means the NLRB will continue to restore much-needed balance to its decisions for a while longer.