On December 8, 2014, the U.S. Senate confirmed Lauren McFerran (“McFerran”) to the National Labor Relations Board (“NLRB”). A nominee of President Obama, McFerran currently serves as the Chief Labor Counsel for the Senate Committee on Health, Education, Labor and Pensions (“HELP Committee”). She will replace pro-union Board Member Nancy J. Schiffer, whose term expires on December 16, 2014. With McFerran’s confirmation, the NLRB will continue to have a 3-2 Democratic majority for, at least, the next several months. Her confirmation is a win for organized labor. Had the Senate not confirmed McFerran when Schiffer’s term expired, the NLRB would have been at a 2-2 deadlock, with two members from each political party.
McFerran has no tenure at the NLRB. However, she briefly worked at a union-side law firm and as a law clerk to Chief Judge Dineen King on the United States Court of Appeals for the Fifth Circuit. On the HELP Committee she worked as Senior Labor Counsel to Senator Ted Kennedy before her current position as Chief Labor Counsel on Senator Tom Harkin’s staff.
During confirmation hearings, Republican Senators questioned McFerran about several controversial issues currently before the NLRB. McFerran generally responded that it would not be appropriate for her to comment on issues she might need to consider if confirmed. She also stated that she understood the importance of varied viewpoints. Although McFerran has not provided her opinion on the current agenda of the NLRB, it is expected that she will follow with the other current Democratic members of the NLRB, Chairman Mark Gaston Pearce and Kent Y. Hirozawa. It is expected that many of the controversial issues before the NLRB will be decided in the near term with this 3-2 Democratic majority NLRB, including key topics such as joint-employer status, the use of employer e-mail systems, and the applicability of Weingarten principles in non-union workplaces.