Showing up for Small Business: Calling ALL Senators to Vote NO on McFerran for NLRB Chair

By SBE Council at 10 December, 2024, 10:58 am

By Karen Kerrigan –

On December 11, the U.S. Senate will vote to confirm or deny Lauren McFerran another term to serve as Chair of the National Labor Relations Board (NLRB). Seeing an opportunity to block more objective, inclusive, and pro-opportunity policy for a good chunk of incoming President Trump’s second term, Senate Majority Leader Chuck Schumer (D-NY) is taking advantage of Republican absences in the Senate to ram through a nomination that will continue to be disruptive to small businesses. Republican Senators must show up to vote “NO” for a nominee whose leadership has been marked by malfeasance, mismanagement, and the denial of speech rights for employers. All Senators must vote “NO” on her confirmation.

In a letter to all U.S. Senators organized by the Coalition for a Democratic Workplace, SBE Council joined allies in the business community to communicate our objection to the McFerran nomination. Putting McFerran at the helm of the NLRB for another term will drive uncertainty, fuel the massive inefficiency and waste of government resources that incoming President Trump – under the leadership of Elon Musk – wants to fix, and create disruption and barriers to enacting the kind of pro-opportunity, pro-growth policies that the new Administration wants to implement.

As noted in the business organization letter sent to all U.S. Senators, McFerran has spent her time fueling divisiveness in the workplace, stomping on free speech, and wasting taxpayer resources on regulatory crusades that have been consistently rejected by the courts and Congress:

● The Board’s extreme and expansive interpretations of the National Labor Relations Act (NLRA) under McFerran have overturned decades of precedented and been invalidated and even condemned by the Supreme Court and other federal courts. For example, over the last two weeks alone, the Board drastically hindered employer speech rights during union organizing campaigns, including banning employer-sponsored meetings in which the employer expresses their views on unionization and preventing employers from explaining to employees how unionization will alter their relationship. The former decision overruled precedent that had stood since 1948, while the latter overruled a 40-year-old precedent. Employer speech rights during union organizing drives have been protected by Congress, the Supreme Court, and the Board itself for decades, but these decisions directly conflict with that history.

● In a recent Tesla case, the Board infringed on CEO Elon Musk’s speech rights by forcing him to delete a post on X, but that decision was invalidated by the 5th Circuit, which said the decision violated Musk’s First Amendment rights and was “light on law and facts.” 

● The Board has also made it more difficult for workers to work independently and issued a new standard that forces employers to tolerate racist, sexist, and other discriminatory language and behavior in the workplace. This policy change is in direct conflict with federal antidiscrimination laws and basic common sense and exposes workers to hostile and unsafe work environments.

● Many courts have questioned the legitimacy of the NLRB’s interpretations of the Act under McFerran’s leadership. The U.S. Court of Appeals for the D.C. Circuit said the Board “ground its decisions in a skewed or ‘clipped view’ of the record” in Absolute Healthcare v. NLRB, while its Tesla decision “rest[ed] on erroneous legal foundations.” The 5th Circuit called the Board’s Thryv, Inc. decision “the epitome of arbitrary,” and the Board’s Stern Produce decision was “nonsense” and “cannot be squared with any reasonable understanding” of the NLRA. The 8th Circuit said the Board relied on “unreasonable inferences” in Strategic Technology Institute, and the 11th Circuit said the Board “did not engage in reasoned decisionmaking” in its UPS decision. The U.S. District Court for the Eastern District of Texas invalidated the Board’s joint employer rulemaking, saying the rule was “arbitrary and capricious” and “contrary to law.” The Board originally appealed this decision but later abandoned its defense of the rule, recognizing its efforts would be futile. These condemnations from the judicial branch are severe and should give pause to the Senate on this controversial nominee.

● Congress itself has rejected the McFerran Board’s actions. In April, Congress passed – on a bipartisan basis – a Congressional Review Act challenge to the Board’s joint employer rulemaking, attempting to nullify the rule in its entirety and prohibit the NLRB from issuing a substantially similar rule in the future. Moreover, Congress found it necessary to conduct significant oversight over the McFerran Board. In June and December 2023, the House Subcommittee on Health, Education, Labor, and Pensions held two hearings to criticize the Board’s actions. Moreover, numerous letters have been sent to the NLRB by the House and Senate labor committees questioning the agency on its expansive policies and allegations of wrongdoing by the OIG.

● The Inspector General released multiple reports on the Board’s mail ballot election procedures under Chair McFerran’s leadership. The initial 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.” The subsequent report provided more detail on the Board’s errors and its response to the Inspector General’s findings. Unfortunately, the Board’s response to these findings was to claim it is not bound by its own procedures, and while it admitted there were some “documentation issues,” it dismissed many of the Inspector General’s findings.

Unfortunately, there’s much more here.

Despite these concerns, U.S. Senate HELP Chairman Bernie Sanders proceeded to a markup of McFerran’s renomination without a formal confirmation hearing, allowing her record to go unquestioned by committee members. While her nomination had stalled in the Senate, Majority Leader Chuck Schumer emphasized his commitment to a full Senate vote, stating that “confirming the NLRB nominees is one of our highest priorities, and we’re going to do everything we can do to get it done by the end of the year.”

Small business owners and entrepreneurs have endured four years of excessive and unwarranted regulatory intrusions that have only fueled uncertainty, higher costs, and made it much more difficult for owners and their teams to plan and operate in a challenging and competitive marketplace.

In 2025, a new administration and Congress have pledged to make the U.S. the best and most competitive in the world for starting, growing, and investing in a business. Placing McFerran at the helm of the NLRB for another term works against that outcome.

The U.S. Senate must reject the confirmation of McFerran.  SBE Council is urging all U.S. Senators to show up and vote NO on this deeply flawed nominee.

Karen Kerrigan is president & CEO of the Small Business & Entrepreneurship Council.