President Biden renominated current Board Chair Lauren McFerran (D) for another term along with Joshua Ditelberg (R), in a move that would secure a Democratic majority until nearly 2027.
A calculated move: The Board has had a Republican vacancy since former NLRB member John Ring’s term expired in 2022. It was expected that the Biden administration would nominate a new Republican member when it renominated Member Gwen Wilcox (D) in September 2023 in line with past practice and precedent. Instead, President Biden renominated Ms. Wilcox alone, and waited to pair a Republican nomination with the re-nomination of Chair McFerran. Packaging the Republican and Democratic seats had the clear goal of cementing a Democratic majority at the Board, regardless of the outcome of November’s presidential election.
Republican nominee, Joshua Ditelberg, would likely bring a more balanced approach to labor law enforcement. Ditelberg is currently a partner at Seyfarth Shaw and has extensive experience representing employers in labor law matters, including arguing against the Obama NLRB’s joint employer rule.
Extended Democratic control: Should the nominations go through, there will be a Democratic majority at the Board through at least August 2026, which would promise continued trouble for employers. Unlike agencies such as the EEOC or the SEC, the NLRB largely sets policy through deciding cases, and the cases to be decided are in the pipeline. Thus, a Democratic majority on the Board means that Democrats will often control the outcome of cases. Under Chair McFerran’s leadership, the current Board has erased decades of precedent and engaged in radical decision-making, including:
- Allowing unions to gain recognition without winning elections;
- Rubber-stamping union-picked bargaining units;
- Policing employee handbooks;
- Protecting harassing and discriminatory employee speech and conduct in the workplace; and
- Restricting severance agreements.
Meanwhile, the Board is facing significant internal problems, including a mammoth case backlog. During an appearance at NYU’s annual labor law conference, Chair McFerran said that the agency is “drowning” in casework amongst increased litigation and staff attrition. Chair McFerran also highlighted increasing hostility from federal courts as another ongoing issue. Noting the Board’s role in creating the increased litigation, HR Policy Association’s Senior Labor & Employment Counsel, Roger King, who participated on the same panel, remarked, “Chair McFerran, you’re going to see a lot more...this Board has pushed the envelope.”
What’s next: There will likely be fierce opposition from Republican senators to Chair McFerran’s re-nomination and the Association will work with members of Congress to ensure they understand the negative impact Chair McFerran’s re-nomination would have on the workplace.
