The United States Senate should reject President Biden’s renomination of Lauren McFerran to the National Labor Relations Board, and Sen. Joe Manchin should lead the way.
Rejecting her nomination is not only a reflection of McFerran’s individual views, but it would better ensure that the NLRB can recapture the integrity and balance that is required to be a neutral referee between management and labor — which is what the Board is supposed to be. Under McFerran’s leadership, however, the Board has deviated drastically from this impartial role through radical decisions that prioritize the interests of unions over the rights of employers and workers.
One of the most troubling aspects of McFerran’s tenure has been her consistent pattern of decisions that undermine workers' rights. A particularly egregious example is the Cemex decision (Cemex Construction Materials Pacific, NLRB Case No. 28-CA-230115), which allows the Board to by-pass a secret ballot election and impose collective bargaining. The decision shifts the burden to an employer to petition the Board for an election upon presentation of signature cards.
Mychal Schulz
| courtesy photo
More egregiously, under the new standard, if the Board decides that an employer committed any unfair labor practice during the election, it may reject the election petition from the employer and certify a union based only upon the signature cards. This decision allows unions to bypass the traditional secret ballot process, which is a hallmark of American democratic principles, and deprive workers of their right to a confidential vote on union representation. In short, McFerran’s participation in the Cemex decision directly contravenes established Supreme Court precedent and erodes a fundamental democratic right in the workplace.
The implications of the Cemex decision cannot be overstated. By allowing a single unfair labor practice, no matter how innocuous or serious, to eliminate a secret ballot election, the Board encourages the filing of meritless unfair labor practice allegations. Moreover, allowing certification of a union without a secret ballot election exposes workers to potential coercion and intimidation. The secret ballot is a critical cornerstone of fair labor practices, ensuring that workers can freely express their choice without fear of retribution from anybody, including unions and employers.
McFerran’s support for this Cemex decision demonstrates a troubling disregard for the protections that have been established to safeguard workers' autonomy and freedom of choice and the role of the Board in protecting those safeguards.
Worse, McFerran’s track record indicates a broader trend of prioritizing union interests over the needs and rights of both workers and employers. Her votes and rulings consistently align with union agendas, often at the expense of established precedent by both the Board and courts. Her views demonstrate a blatant disregard for a balanced and fair consideration of all parties involved in labor disputes, and it threatens to disrupt the ability of employers to manage the workplace in a manner that takes into consideration the balancing of the interests of workers, employers, and the customers they both serve.
This pattern of partisanship has transformed the Board into a body that no longer serves its intended purpose as a neutral arbiter of workplace disputes, but rather as an instrument of union power.
Yet another example is McFerran’s advocacy for the joint employer rule issued by the Board in 2023, which would significantly disrupt the economic model of franchise businesses, potentially killing thousands of businesses and millions of jobs. Franchise businesses are a powerful pathway to prosperity for underserved communities.
While a U.S. District Court judge vacated the Board rule in March 2024, McFerran’s support for this rule demonstrates here strong bias against employers and businesses.
President Biden’s renomination of McFerran can be seen as an attempt to inject more partisanship into the Board, which undermines the Board’s historical foundational principle of neutrality. The Board was established to be fair and equitable referee in labor disputes, balancing the interests of labor and management. McFerran’s tenure has drastically skewed this balance, and her renomination threatens to entrench the Board’s bias further.
Moreover, the Board’s bias during McFerran’s tenure has resulted in numerous, and expensive, legal challenges to Board decisions that have been roundly criticized and reversed by a number of Federal courts.
The Senate plays a crucial role in maintaining the integrity of the Board by rejecting nominees who do not uphold its mandate of impartiality. Confirming McFerran’s renomination would signal an acceptance of the increasing partisanship that undermines the Board’s credibility and effectiveness and would countenance the Board’s abandonment of any shred of fairness or neutrality.
It is imperative that the Senate takes a stand to preserve the Board’s role as a fair and impartial body.
For the workers and employers of West Virginia, and indeed across the nation, the stakes are high. Our state, with its unique economic environment and reliance on industries that are often heavily unionized, requires a balanced Board that can fairly adjudicate labor disputes without bias. Workers deserve a Board that respects their rights to fair representation and a secret ballot, and employers require assurance that their interests will not be unjustly compromised or ignored.
The Senate must reject President Biden’s renomination of Lauren McFerran to the Board. Her tenure has been marked by decisions that prioritize union interests at the expense of workers’ rights and employer fairness. To maintain the integrity and neutrality of the Board, it is essential that the Senate stands firm against this partisan move and upholds the principles of fairness and impartiality in labor relations.
Schulz is an attorney from Charleston.