Published
June 06, 2024
On May 23, President Biden nominated current chair of the National Labor Relations Board (NLRB), Lauren McFerran, for another term. The Senate should not simply rubber-stamp the nomination but rather should hold a hearing and carefully consider whether her record merits another term. There are a number of factors the Senate needs to dig into.
First, on July 8, 2023, the NLRB’s Inspector General issued a scathing report regarding a mail ballot election from 2022. The IG concluded that there had been “gross mismanagement” of the election in a way that “could have a significant adverse impact on the NLRB in performing its statutory mission.” Worse yet, the IG found that NLRB staff tried to cover up their misconduct, stating that they “lacked the appropriate candor” when interviewed. It does not appear that anyone has been disciplined as a result of the report or that the Board has taken any other action in response.
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Let your Senators know it’s time to rein in the NLRB and vote "no" on Lauren McFerran.
Second, under McFerran’s tenure, the NLRB has been repeatedly rebuked by the Courts. For example, in the Stern case, the DC Court of Appeals wrote that the NLRB’s justification for its position was “nonsense” and “speculation” and that the agency had “strayed from its statutory mandate.” In a case called Thryv, the Fifth Circuit said that the NLRB’s position had been “the epitome of arbitrary.” In another case called Absolute Healthcare, the DC Court of Appeals said that the Board “never acknowledged, let alone grappled with” evidence that exonerated the employer and had taken a “skewed” view of the record. Finally, in Starbucks v. McKinney, the Supreme Court struck down the NLRB’s attempt to use a looser standard for pursuing 10(j) injunctions, finding the Board’s position “entirely inappropriate.”
Third, McFerran voted for the NLRB’s joint employer rule, which would have made employers liable for workers they don’t employ and workplaces they don’t control. This rule was struck down in the Eastern District of Texas, with the court stating that the NLRB’s arguments in favor of the rule were “unpersuasive” and that the rule was “arbitrary and capricious.”
Fourth, McFerran voted for the Cemex decision, which dramatically changes the process for union organizing by making it the employer’s obligation to file an election petition if the union presents it with signature cards. Apart from the radical nature of the change in procedure, it appears to be contrary to Section 9(e) of the statute and Supreme Court precedent.
Finally, under McFerran, the Board has repeatedly attacked employers’ First Amendment free speech rights.
None of this is good for employers, especially small businesses that don’t have HR departments to help them navigate the minefield of the NLRB. It’s not particularly helpful for workers either, who have a right to participate or not to participate in union activity under the National Labor Relations Act.
Overall, the NLRB no longer appears to be an agency that is well-run and conscious of its statutory mission and limitations. The Senate needs to take a serious look at these matters and insist on some accountability.
About the authors
Glenn Spencer
Spencer oversees the Chamber’s work on immigration, retirement security, traditional labor relations, human trafficking, wage hour and worker safety issues, EEOC matters, and state labor and employment law.
