NLRB Nominee: Lauren McFerran

Lauren McFerran
Nominated to be a Member of the National Labor Relations Board
Nomination announced: May 23, 2024

Nomination Status: Lauren McFerran’s renomination to the National Labor Relations Board was blocked by the Senate in a 49-50 vote on December 11, 2024.

Lauren McFerran is the current chair of the National Labor Relations Board. President Biden renominated her for another five-year term, expiring December 16, 2029. Under McFerran’s leadership as chair the NLRB made several politicized decisions contrary to the intent of the National Labor Relations Act and which harm workers:

Cemex Construction Materials Pacific (“Cemex”): The Board cast aside more than a half century of Supreme Court precedent in order to institute “card check” union certification by another name. Just like when Americans vote on their representation in Congress, secret ballot elections are vital when Americans vote on their representation in the workplace. The Supreme Court has long recognized secret ballot elections as the preferred method of voting on the question of union representation, yet Cemex made these elections functionally useless by making it much easier for unions to discard the results when they lose and enable the Board to certify the union as workers’ representative anyway. (Read more in our coalition letter).

Lion Elastomers LLC: In Lion Elastomers, the Board under Chair McFerran prevents employers from protecting their employees from harassment, including racial and sexual insults at the workplace. It may also put employers at odds with other federal protections such as Title VII of the Civil Rights Act of 1964 which protect employees from this type of harassment at the workplace. Federal courts have been clear for decades that employers have a legal responsibility to prevent harassment and discrimination in the workplace – yet under Chair McFerran, the Board reimposed outdated rules that permit such ugly behavior as long as it occurs in the course of union activity, leaving employers unable to maintain a workplace free of harassment and discrimination. (Read more in our coalition letter).

As the Institute for the American Worker details in the report “Battle of the 7s,” this decision marked the second time that Chair McFerran sought to excuse discriminatory conduct in the context of union activity. Obviously to most, racial and sexual harassment and discrimination are wrong in any setting regardless of the context. Yet Chair McFerran has shown to be an unfair arbiter, giving favor to awful workplace conduct at the expense of those targeted by such language

McFerran’s Board has been subject to whistleblower complaints and investigations from the Office of Inspector General (OIG), the Senate Committee on Health, Education, Labor, and Pensions (HELP), and the House Committee on Education and the Workforce. The OIG report documented “gross mismanagement” of union elections in order to tilt the playing field in favor of organized labor.

In an editorial, the Wall Street Journal said of McFerran:

President Biden is using executive power to change labor law to favor unions, and his National Labor Relations Board (NLRB) has been the tip of his spear. That’s why he wants the Senate to rush through the renomination of a regulator who might as well work for the AFL-CIO.

At a hearing of the House Committee on Education and the Workforce, former NLRB chairman John Ring said of the NLRB under McFerran:

Seeking to promote a particular agenda, the current Board majority and the NLRB General Counsel are attempting to administratively rewrite the Act to facilitate unionization at the expense of individual employee rights and employer interests when the Act clearly directs the Agency to be an impartial arbiter of labor matters.

On August 1, 2024, the Senate Committee on Health, Education, Labor, and Pensions approved McFerran’s nomination on a party-line vote. The committee did not hold a confirmation hearing to examine McFerran’s record.

Additional Resources:

Independent Women’s Forum: Radical NLRB Chief Should Be Replaced, Not Reappointed
https://www.iwf.org/2024/12/09/radical-nlrb-chief-should-be-replaced-not-reappointed/

National Federation of Independent Business: Reject Lauren McFerran’s Renomination to the NLRB
https://www.nfib.com/news-article/nfib-to-congress-reject-lauren-mcferrans-renomination-to-the-nlrb/

I4AW Coalition Letter on Lauren McFerran

Sen. Cassidy: VIDEO: Cassidy Criticizes HELP Democrats for Ramming Through Biden-Harris Labor Nominees With No Public Hearing
https://www.help.senate.gov/ranking/newsroom/press/video-cassidy-criticizes-help-democrats-for-ramming-through-biden-harris-labor-nominees-with-no-public-hearing

U.S. Chamber of Commerce letter to the Senate Committee on Health, Education, Labor, and Pensions
https://www.uschamber.com/employment-law/unions/letter-to-members-of-the-senate-help-committee-opposing-confirmation-of-nlrb-chair

Wall Street Journal: A Reckoning for Biden’s Lawless Labor Chief
https://www.wsj.com/articles/lauren-mcferran-national-labor-relations-board-stern-produce-raymond-randolph-04258985

U.S. Chamber of Commerce: White House Nominates Member McFerran for New NLRB Term
https://www.uschamber.com/employment-law/white-house-nominates-member-mcferran-for-new-nlrb-term

Coalition Letter, led by Institute for the American Worker and Americans for Prosperity
https://i4aw.org/wp-content/uploads/2024/03/Coalition-Letter-to-NLRB_June-2024.pdf 

Coalition letter, led by the Coalition for a Democratic Workplace
https://myprivateballot.com/2024/06/12/cdw-sends-letter-to-congress-urging-oversight-of-nlrb-chair-mcferran-rejection-of-her-nomination/

I4AW Report: “Battle of the 7s Report: Lauren McFerran’s Weaponization of NLRA Section 7 Against Title VII Civil Rights Protections, Allowing Racist and Sexist Harassment in the Workplace”
https://i4aw.org/reports/battle-of-the-7s-report/