As general background, the National Labor Relations Board (NLRB) is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

The agency has many components to it, including regional offices that handle day-to-day allegations of federal labor law being violated. If a regional office determines that a violation of the National Labor Relations Act has occurred, it will file a complaint against the offending party. That complaint will be adjudicated before an administrative law judge who will hear the evidence and issue a decision. The administrative law judge’s decision, however, can be appealed to the National Labor Relations Board—which is comprised of five individuals appointed by the president and confirmed by the senate. Each of these appointments are for four years.

Given that the Board members are appointed by the President and do not enjoy lifetime tenure (like Supreme Court Justices), the Board is susceptible to swings in viewpoints based on whether there is a Democratic or Republican president. In light of this, there is a tradition wherein the President appoints three members to the Board from his own party and appoints two members from the minority party. Further, the start and end times for Board member appointments are not identical to the presidential election cycle.

With this background in mind, August 27, 2021 marks an important day this is the last day of current Board Member William Emanuel’s term. Currently, the Board’s five member composition is 3-2 in favor of conservative-leaning members. After August 27, 2021, Member Emanuel will be replaced with David Prouty. Mr. Prouty was recently confirmed by the Senate by a 53-46 vote margin. Mr. Prouty will be leaving his current role as the general counsel of New York City Service Worker Union SEIU 32BJ to fill the fifth and final seat on the Board.

With the balance of power officially shifting, it will be important for employers to monitor NLRB decisions closely. We will make sure to update this blog regularly to communicate major changes in the law.