Labor Board Chief Says Time in Office Is ‘Out of My Hands’ (1)

National Labor Relations Board Chair Lauren McFerran said she would “of course” continue to serve at the agency if confirmed to a third term by the Senate, as shifts under an incoming Trump administration loom.

“While that decision is out of my hands at this point, I’m a public servant and would, of course, continue to serve if that is what I’m called to do,” she told Bloomberg Law on Thursday.

McFerran’s comments came after her Democratic colleague acknowledged that her time at the board could be coming to an end.

Her appearance at the American Bar Association’s Labor and Employment Law Conference in New York may be her last as a member of the NLRB and definitely her last as board chair, member David Prouty (D) said from the stage Thursday.

An audience of labor lawyers gave McFerran (D) a standing ovation in reaction to Prouty’s statement.

McFerran has been waiting for the Senate to approve her third term with the NLRB for nearly six months. Her reconfirmation would give Democratic members control of the board majority until 2026. McFerran’s current term expires Dec. 16.

Majority Leader Chuck Schumer’s (D-N.Y.) told Bloomberg Law that he’s still attempting to move on Biden administration nominees like McFerran.

“We’re going to try to do as much as we can when it comes to judges and nominees, particularly those nominees where the balance within the agency is affected,” he said Wednesday.

Democratic control of the NLRB would protect several major pro-worker precedents set during the Biden administration, including Wednesday’s ruling that outlawed mandatory “captive audience” meetings in which employers argue against their workers unionizing.

Prouty emphasized McFerran’s role in those accomplishments at the ABA conference.

“This has been one of the most consequential times in history for the board and I want to highlight that Lauren, as chair, has kept the trains running, has kept us going at a time where we’ve had to do more with less,” Prouty said. “We’ve had a tremendous increase in interest in unions and interest in the [National Labor Relations] Act and under Lauren’s leadership, we kept going and actually issued more decisions every year.”

But Senate confirmation of McFerran could also prompt the Trump administration to take the unprecedented step of violating federal labor law to fire her, and possibly her Democratic colleagues, to make room for a new Republican majority, NLRB watchers have said.

If the Senate fails to confirm McFerran—as well as Seyfarth Shaw LLP lawyer Joshua Ditelberg, the current nominee for the open GOP seat—then the Trump administration would have two empty spots to fill.

President-elect Donald Trump is expected on Inauguration Day to fire General Counsel Jennifer Abruzzo and name Marvin Kaplan, the NLRB’s sole Republican member, as board chair.

Once the GOP-majority Senate confirms Trump’s selections for the two empty seats, the reconstituted NLRB would likely begin the work of systematically dismantling the Biden-era board’s achievements.