
July 30, 2024
The Honorable Bernie Sanders
Chair
U.S. Senate Committee on Health, Education, Labor & Pensions
Washington, D.C. 20510
The Honorable Bill Cassidy
Ranking Member
U.S. Senate Committee on Health, Education, Labor & Pensions
Washington, DC 20510
Dear Chairman Sanders, Ranking Member Cassidy, and Members of the Committee on Health, Education, Labor & Pensions,
Independent Women’s Voice is the leading national women’s organization dedicated to expanding support for common-sense public policies among women, independents, millennials, and Gen Z. IWV fights for policy solutions that aren’t just well-intended but actually enhance people’s freedom, opportunities, and well-being. Therefore, we oppose the renomination of Lauren McFerran as Chair of the National Labor Relations Board (NLRB).
The NLRB under McFerran has pursued a deeply troubling and biased agenda that erodes worker freedom and opportunity for women. The agency has sought to undermine secret ballot elections, imposed growth-stifling regulations on women-owned small businesses, and opened the door to pernicious sexual and racial harassment in the workplace. McFerran’s leadership should not be confirmed for another term that could potentially tie the hands of a new administration.
McFerran has advanced the Biden administration’s pro-union agenda by tilting labor law in favor of unions winning elections, granting labor unions greater rights against employers, and pushing more workers into unions. The NLRB is supposed to be a neutral arbiter of federal law but has abandoned that role in their decision making and other actions.
In the Cemex decision, which arose after a labor union attempted to organize a bargaining unit of cement truck drivers and driver trainers, the NLRB sought to eliminate secret ballots in union representation elections, replacing them with the flawed “card check” process. In this system, workers sign authorization cards to indicate if they support unionizing their workplace but are not guaranteed any privacy when making that decision, easily opening them up to intimidation, harassment, and coercion. The Board’s management of union elections under McFerran in favor of organized labor has also been well documented by the Office of the Inspector General (OIG) and the Senate Committee on Health, Education, Labor, and Pensions.
By law, American workplaces should be free from sexual and racial discrimination and harassment. The NLRB under McFerran has made it more difficult for employers to maintain civil workplaces free from profanity and racist and sexist conduct. In the Lion Elastomers LLC II decision, the NLRB led by Chair McFerran ruled that Section 7 of the National Labor Relations Act (NLRA) may prevent employers from disciplining or firing employees who use discriminatory or harassing language so long as they were engaged in protected labor activities. McFerran wrote for the majority that “there is a fundamental difference… between employee misconduct committed during Section 7 activity and misconduct during ordinary work.” Employees have the green light to engage in labor activities “robustly without fear of punishment for the heated or exuberant expression and advocacy that often accompanies labor disputes.”
Should “exuberant expression” include calling a boss a “f***ing crook” during heated conversations, posting social media attacks against managers and their families, and calling non-strikers “whores” and the “n-word” while in the picket line? Apparently, it does as McFerran acknowledged has happened in previous instances. For example, in 2020, the NLRB forced Amazon to rehire a union-organizing employee despite video evidence of him arguing with a female employee and calling her a “gutter bitch,” “crackhead,” and “stupid.”
Such a biased decision prioritizes union-boosting activities above federal and state anti-discrimination laws and social cohesion. It erodes the ability of female and minority small business owners to fire workers who engage in workplace damaging and abusive behavior so long as they are pursuing union ends.
The NLRB has also used its rule-making authority to force greater costly and unnecessary restrictions on businesses, especially small businesses. In October 2023, the McFerran Board issued a new joint employer standard, which dramatically expanded the definition of “joint employer” under the NLRA. Our sister organization, Independent Women’s Forum (IWF), submitted a public comment arguing that the proposed new standard “is vague and will lead to significant confusion for businesses of all sizes, particularly for smaller firms, who do not have the legal and compliance resources of larger ones.” Women-owned businesses stood to lose contracts and revenue while facing new costs and legal exposure. Female franchisee owners, which comprise 30.6% of franchise businesses, risked losing their independence, flexibility, and dreams of being their own bosses. This rule would have upended every industry and severely damaged the American economy.
McFerran’s board was held in check for this overreach. A federal court nullified the rule in March 2024, and Congress passed a Congressional Review Act on a bipartisan basis to overturn the rule. The Board withdrew its appeal of the March ruling, but with another term, we have no guarantee that McFerran will not try again.
The re-nomination process of McFerran has been calculated and murky. Without holding a hearing before voting on her nomination, members of Congress cannot challenge her record or the board’s decisions and actions. The American people deserve to hear why she thinks that her leadership merits renewal in light of the biased approach she and this board have taken.
Also, by nominating McFerran six months before her term expires, President Biden is clearing the way for her and two other Biden appointees to serve for several years, solidifying Democratic control of the board well into a new administration. The next president, regardless of who wins in November, will be tethered to the actions of this board.
McFerran has demonstrated a disregard for precedent, impartiality, and fundamental protections against discrimination in advance of this administration’s favored special interest, labor unions. Therefore, we oppose her renomination.
Respectfully,
Patrice Onwuka
Director, Center for Economic Opportunity