President Joe Biden has nominated National Labor Relations Board Chair Lauren McFerran for a third term, a move that could cement Democratic control of the agency even if Biden is unseated by Republican challenger Donald Trump in November.
The White House announced the nomination on Thursday even though McFerran's current five-year term does not expire until December.
If McFerran is confirmed by the Democratic-controlled Senate, the five-member board would continue to have a Democratic majority until August 2026 when the term of Biden appointee David Prouty expires.
Under McFerran, the NLRB has issued a series of rulings criticized by Republicans and business groups that have made it easier for unions to organize workers and have expanded the type of concerted activity protected by federal labor law.
Kristen Swearingen, chair of the Coalition for a Democratic Workplace, an umbrella group of business organizations, accused Biden of "trying to hijack the NLRB" and cement the decisions issued since he took office.
She pointed specifically to a 2023 ruling that said workers are still protected by federal labor law when they make profane, harassing or discriminatory comments in the course of a workplace dispute.
"Lauren McFerran has championed radical policies that have abandoned long-standing precedent and destabilized labor relations across the economy," Swearingen said in a statement.
An NLRB spokeswoman declined to comment.
Seth Harris, who was deputy secretary of labor during the Obama administration, said it was not surprising that "hardened partisans who oppose the NLRB" would object to McFerran's nomination, and said that she deserved to be confirmed quickly.
"Chair McFerran has been a quiet but powerful force in restoring the NLRB to its core mission of safeguarding workers' rights to organize and bargain collectively after a disastrous period under President Trump," Harris said in an email.
Biden on Thursday also nominated Joshua Ditelberg, a partner at Seyfarth Shaw in Chicago, to fill a Republican seat on the board. The seat has been vacant since late 2022 when Trump appointee and former chair John Ring's term expired.
Ditelberg did not respond to a request for comment on Friday. He has represented employers in several high-profile NLRB cases, including one involving sanitation firm Browning-Ferris in which the Obama-era board made it easier to hold companies liable as "joint employers" of contract or franchise workers.
Laura Maechtlen, who chairs Seyfarth's national labor and employment practice, in a statement said: "Josh’s tremendous knowledge and experience coupled with his thoughtful approach to analyzing complex legal issues makes him an ideal candidate for the NLRB."
McFerran was first appointed to the board in 2014 by Democratic former President Barack Obama, and in 2020 was tapped for a second term by Trump. The board typically has three members from the president's party and two from the opposing party.
Prior to joining the board, McFerran served as chief labor counsel for U.S. Senate Democrats on the Health, Education, Labor, and Pensions Committee. She was previously an associate at union law firm Bredhoff & Kaiser.
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