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Less than a week into his tenure as a lame duck, President Biden is already moving to fireproof his legacy. Facing the likelihood of a future Republican administration, the White House is evidently concerned about conservatives putting the torch to four years of misguided policymaking. This is why, in a last-ditch effort to stack the deck, Democrats want to pack key federal agencies with activist allies before the clock strikes midnight.
Instead of letting a lame duck call the shots, lawmakers should let American voters decide by allowing the next presidential administration to make these crucial appointments.
President Biden’s shady maneuvers are best showcased by his recent renomination of Chair Lauren McFerran to the National Labor Relations Board (NLRB). Currently, the Board holdstwo additional Biden appointees, one Trump appointee and one vacant seat, in addition to McFerran’s seat which will expire in December.
Traditionally, Board members are confirmed in pairs, with one Republican and one Democrat simultaneously entering NLRB leadership in order to maintain ideological balance. To fill the vacant Republican seat, Josh Ditelberg has been nominated alongside Chair McFerran.
The only problem? Ditelberg should have been nominated back in September 2023, when Democrat Gwynne Wilcox was confirmed to the Board without a Republican companion. At the time, Senate Majority Leader Chuck Schumer (D-N.Y.) promised Sen. Lisa Murkowski (R-Alaska) that this solo Democrat appointment would be followed by a solo Republican appointment in the near future.
But in a classic flip-flop, McFerran and Ditelberg are now being packaged together, which would cement a Democrat NLRB majority until at least 2026. As the U.S. Chamber of Commerce explains, “in nominating McFerran and pretending she should be paired with Ditelberg, Biden is trying to get two for one.”
Aside from the obvious subversion of appointment precedent, allowing Chair McFerran to continue at the helm would be catastrophic for American businesses and workers alike.
For instance, on her watch, Chair McFerran has allowed workplace discrimination to be weaponized for pro-union activities. This decision has subjected workers to traumatizing harassment, while simultaneously barring employers from intervening. According to a report by the Institute for the American Worker, McFerran’s NLRB has used Section 7 of the National Labor Relations Act (NLRA) to excuse “racist rhetoric, sexist harassment, and vulgarity in the workplace, as long as it takes place in the context of ‘union activity.’”
By undermining critical Title VII civil rights protections, McFerran has opened union dissidents up to unchecked workplace abuses. As F. Vincent Vernuccio, President of Institute for the American Worker, explains, “This is more than a loophole, it’s a blatant disregard for workplace civility in favor of union activity.” Without these critical protections, McFerran has taken the guardrails off pro-union harassment, endangering worker safety and handcuffing employers to the sidelines. Under the McFerran regime, ideological purity is more important than workplace civility.
Additionally, Chair McFerran has shown that she has no problem disregarding long-standing legal precedent to supplement her pro-union agenda. In August 2023, the McFerran Board made it easier for unions to subvert secret ballot elections and replace them with a flawed “card check” system. According to the Coalition for a Democratic Workforce (CDW), despite widespread belief that secret ballots are the “gold standard for determining union representation,” McFerrancontinues to “deny employees their right to a private vote in fair union representation elections.”
These actions contradict longstanding trends against card checks from the highest perches of government. The Supreme Court has acknowledged that card checks are “admittedly inferior to the election process,” while also admitting that employers “may have valid objections to recognizing a union on that basis.” Similarly, lawmakers have declined to codify card checks over the past two decades, with legislation like the Employee Free Choice Act and the Protecting the Right to Organize Act failing to be enacted. As the CDW continues, this is but “one example of many in which the Board under Chair McFerran has ignored the law and the will of workers in order to advance a harmful political agenda.”
Lastly, McFerran’s war on workers has stripped countless Americans of the ability to dynamically earn income. Through the NLRB’s misguided redefinition of the joint employer standard, over 72 million independent contractors had their livelihoods threatened by McFerran’sencroachment. Under her direction, business models such as franchising, staffing agencies and temporary work arrangements would have been devastated by mandatory worker reclassification.
Luckily, a federal court vacated this misguided standard in March 2024, rejecting what it said was an attempt to “treat virtually every entity that contracts for labor as a joint employer because virtually every contract for third-party labor has terms that impact, at least indirectly, at least one of the specified ‘essential terms and conditions of employment.” A bipartisan Congressional Review Act (CRA) challenge has also been introduced to overturn McFerran’s overreach.
Time and time again, McFerran has proved to be a roadblock for the prosperity of American workers and businesses. By condoning workplace harassment, manipulating union elections and waging war on self-employed workers, the McFerran NLRB has made a strong case for a leadership shakeup.
The Biden administration cannot be allowed to pack the NLRB at the eleventh hour. Based on the gross dysfunction of the McFerran NLRB, the Chair should be offering her resignation, not accepting renomination. Instead of letting a lame duck call the shots, lawmakers should let American voters decide by rejecting Lauren McFerran’s renomination and allowing the next President to appoint a replacement.