Radical NLRB Chief Should Be Replaced, Not Reappointed

Senators, yes, it’s the holiday season and a lame-duck session, but don’t get distracted from the reason you’re in Washington—namely, to improve Americans’ lives. 

Unfortunately, some Republican senators are failing to show up for votes to block outgoing President Joe Biden’s nominees, allowing Senate Democratic leader Chuck Schumer, D-N.Y., to easily shepherd eight federal Biden judicial nominees since the Nov. 5 elections. 

Republican senators’ blowing off voting on one particularly important Biden nomination would adversely affect workers and families financially. It would also empower a sworn enemy of Elon Musk’s free speech rights.\

Biden wants Lauren McFerran to serve another term as chair of the National Labor Relations Board (NLRB). Her current term expires on Dec. 16. The vote being pushed by the Biden administration seeks to control the board well into President-elect Donald Trump’s second term.

The Independent Women’s Forum has joined more than 50 manufacturing groups, trade associations, small businesses, and other organizations—representing millions of workers and employers—to send a letter to senators on Tuesday flagging this important issue. 

The letter, under the banner of the Coalition for a Democratic Workplace, outlines how McFerran is grossly unqualified due to her mismanagement of the NLRB—as made clear by federal court rulings and the NLRB’s own Office of the Inspector General (OIG), not to mention her extreme policy agenda.

It’s telling that Sen. Bernie Sanders, I-Vt., chairman of the Senate Health, Education, Labor, and Pensions Committee, refused to hold a confirmation hearing on McFerran’s nomination to thwart the opposition.

Our letter argues that McFerran’s judgment is so poor that the board’s decisions and flawed interpretations of the National Labor Relations Act have been invalidated and even condemned by the Supreme Court and other federal courts. 

For example, in a recent Tesla case, McFerran’s board infringed on Musk’s free speech rights by forcing him to delete a post on X that it argued threatened employees, but that decision was invalidated by the 5th U.S. Circuit Court of Appeals, four judges of which said the decision violated Musk’s First Amendment rights and was “light on law and facts.” 

Our coalition noted that many courts have questioned the legitimacy of the NLRB’s interpretations of federal law under McFerran’s leadership. The U.S. Court of Appeals for the D.C. Circuit said the board grounded its decisions “in a skewed or ‘clipped view’ of the record” in Absolute Healthcare v. NLRB (a case where the feds alleged a chain of medical marijuana dispensaries unlawfully fired an employee for trying to unionize), while its Tesla decision knocking Musk “rest[ed] on erroneous legal foundations.” 

In partially reversing the NLRB’s judgment, the 5th Circuit called the NLRB’s Thryv Inc. decision “the epitome of arbitrary” for forcing a small business software firm to make extra payments to terminated employees. It also wrote that NLRB’s Stern Produce decision was “nonsense” and “cannot be squared with any reasonable understanding” of the National Labor Relations Act after two employees of a produce distributor were punished for their unethical behavior in the workplace. 

The 8th Circuit said the NLRB relied on “unreasonable inferences” in Strategic Technology Institute, a case where McFerran’s board falsely claimed that a defense contractor fired workers for attempting to unionize. The 11th Circuit said the NLRB “did not engage in reasoned decision making” this year in a dispute around UPS’ labor practices for seasonal package-delivery workers in New York. 

Such repeated condemnations from the judicial branch should give pause to the Senate on this controversial nominee.

McFerran’s extreme policies do not end there, however. The NLRB under McFerran also opened up workers to bullying by moving to eliminate secret ballots in union representation elections and instead use openly signed authorization cards to determine workers’ desire for unionization. As our coalition letter pointed out: “The Supreme Court and numerous Courts of Appeals have consistently recognized that these types of “card checks” are “admittedly inferior to the election process” and are subject to “abuses” and “misrepresentations.”

Our letter further notes that McFerran’s board also infringed on employer speech rights during union organizing efforts, including banning employer-sponsored meetings at which employers shared their views on unionization. The NLRB prevented employers from explaining to employees how unionization will affect their relationship. That overrules precedent in place since 1948. Employer speech rights during union organizing drives have been protected by Congress, the Supreme Court, and the board itself for decades, but McFerran’s decisions directly undermine those protections. 

On McFerran’s watch, House and Senate labor committees have conducted hearings criticizing the board’s actions and sent numerous letters to the NLRB, questioning the agency on its expansive policies and allegations of wrongdoing. That’s on top of the Office of the Inspector General releasing multiple reports on the board’s mail-ballot election procedures under McFerran’s leadership. 

The Office of the Inspector General’s report found the board guilty of “gross mismanagement” and a “lack of candor” that “created the risk of great reputational harm that could negatively impact the ability of the Agency to carry out [its] mission.” 

Democrats still control the Senate, but with a slim margin of 51 votes to Republicans’ 49. There are enough Democratic defectors with independent streaks who could block this terrible nomination. 

Fortunately, outgoing Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, along with Angus King of Maine—all of them independents who caucus with Democrats—showed a willingness to vote on principle over party. They joined Republicans to rescind the destructive, McFerran-backed joint-employer rule on franchisors and franchisees.

Though Biden vetoed the bill, his rule was struck down by a federal court in March, leading the NLRB to withdraw its appeal and allow a more friendly Trump-era rule to stand. That was a massive win for small businesses and franchises, with implications for independent contractors—not to mention employees and customers who were shielded from further Biden-fueled inflationary price hikes resulting from regulatory bloat. 

Senators should not allow other circumstances to distract them from their duties. They should reject the McFerran nomination.

Carrie Sheffield is a senior policy analyst at Independent Women’s Voice and sister organization, Independent Women’s Forum.