On Monday December 8, 2014, the U.S. Senate voted along party lines to confirm President Obama nominee Lauren McFerran to the National Labor Relations Board (NLRB). McFerran, currently the chief labor counsel for the Senate Committee on Health, Education, Labor and Pensions (HELP Committee) will replace former union attorney Nancy J. Schiffer on the five-member Board. McFerran was not the president’s first choice to replace Schiffer. The administration pulled the nomination of recess appointee Sharon Block following opposition by Republicans and others. Block’s recess appointment was ruled unconstitutional by the Supreme Court of the United States in its Noel Canning decision.
Interestingly, McFerran did not get all of the Democrat votes on the cloture vote—Senator Joe Manchin (D-WV) voted “nay” on cloture. There has been some speculation in Washington that Manchin may switch party affiliations in the next congress. On the other hand, McFerran’s nomination was pushed through in record time. With judicial confirmations averaging 180 to 210 days, her confirmation by the lame duck Senate took little more than a month.
McFerran’s primary experience is with the federal government. She has, however, no prior experience working at the National Labor Relations Board. After graduating from Yale Law School, McFerran worked for a short time at a union-side law firm based in Washington, D.C. She also clerked for Judge Carolyn Dineen King on the Fifth Circuit Court of Appeals. McFerran became a Senior Labor Counsel to Senator Ted Kennedy on the Senate HELP Committee staff. Both she and Sharon Block were on Kennedy’s HELP staff and shared responsibility for the labor agenda. She was also on Senator Tom Harkin’s (D- IA) staff when Harkin became Chairman of the HELP Committee.
During Senate confirmation hearings McFerran did not answer questions regarding her views concerning a number of high profile issues pending before the Board. The outcome of these cases will dramatically impact the future of labor-management relations. Significant pending issues include whether employees may use work email accounts for union organizing, the criteria for determining joint employer status, and the standard for deferral to labor arbitration awards, among others.
Despite her unwillingness to commit to a position on these issues, observers of the NLRB expect McFerran will vote in lock step with fellow Democrat Board members, Chairman Mark Gaston Pearce and Kent Y. Hirozowa. Accordingly, employers should continue to expect a steady stream of union-friendly rulings from the NLRB, including the likely implementation of the “ambush election” rules in the near future.