Published
May 28, 2024
On May 23, President Biden nominated Lauren McFerran to another term on the National Labor Relations Board (NLRB or Board). The timing was odd since her term doesn’t expire until mid-December. But the reason is evident — should the Senate confirm her, Democrats would lock in a Board majority until well into 2026.
To convince the Senate to move on the nomination, the White House also nominated a Republican, Joshua Ditelberg, to fill the empty Republican seat on the five-member Board. This is how NLRB nominations are typically handled: a Republican is paired with a Democrat, and both move forward. There’s just one problem.
The vacant Republican seat should have been paired with Democrat Board Member Gwynn Wilcox, who was confirmed solo for a second term in September 2023. In fact, Senate Majority Leader Chuck Schumer (D-NY) promised Senator Lisa Murkowski (R-AK) that in exchange for voting to confirm Wilcox, he would move a Republican Board member. In other words, a pairing. In nominating McFerran and pretending she should be paired with Ditelberg, Biden is trying to get two for one.
While it’s nice that Senator Schumer kept his promise to Senator Murkowski, albeit nine months late, Republicans shouldn’t fall for this gambit. Ditelberg should be voted through to keep the previously promised pairing, and then the Senate can separately consider McFerran. And there’s plenty there to consider.
At a time when the NLRB is constantly asking Congress for more money, McFerran has led the NLRB into a thicket of actual and potential litigation around highly contentious decisions that are sucking up agency resources. Exhibit A is the joint employer regulation, which went far beyond existing case law and precedent and was subsequently struck down in court (the Board is now appealing). But there’s much, much more, including:
- A dubious decision related to defining independent contractors
- Allowing workers to use profanity and sexually harassing language in the workplace (in conflict with Title VII of the Civil Rights Act)
- Imposing an impossible-to-interpret standard around employee handbook language
- Restrictions on employer free speech rights
- The Cemex decision, which threatens to do away with secret ballot elections
Many of these decisions contradict Supreme Court rulings, the text of the National Labor Relations Act, and even the U.S. Constitution. In fact, the NLRB has already seen a number of judicial smackdowns.
Even worse, the NLRB was found by its Inspector General to have engaged in serious misconduct around elections in a manner that could have “a significant adverse impact on the NLRB in performing its statutory mission.” Adding insult to injury, NLRB officials then tried to cover up the misconduct, with the IG stating that agency employees “lacked the appropriate candor” during its investigation. To date, it does not appear that anyone has been disciplined for this malfeasance or that the Board has done anything about it.
The Senate has a decision to make, but it should be obvious: keep the Majority Leader’s promise and vote on Ditelberg’s nomination and then seriously examine McFerran’s qualifications to remain on the Board. Given the record of the NLRB over the past three years under McFerran’s leadership, there is much to consider.
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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.
