Unions see red (and businesses may see red soon too) as the Senate rejects Biden’s NLRB chair renomination

In a move that will swing the pendulum from union-to-business friendly faster than some expected, the Senate yesterday narrowly voted against advancing President Joe Biden’s nominee, Lauren McFerran, the current Chairman of the National Labor Relations Board (NLRB), for another term.

The vote was 49-50, with independent Senators Joe Manchin (WV) and Kyrsten Sinema (AZ) joining Republicans in opposition. After McFerran’s term expires later this month, President-elect Donald Trump can install a Republican majority and potentially turn the NLRB into a business-friendly administrative agency.

Impact on Unions

The rejection of McFerran’s nomination is a gut punch to unions and Biden’s pro-union agenda. Under McFerran’s leadership, the board has issued a series of rulings, many recent, that expanded union rights and made unionizing easier. As the Huffington Post highlighted, one of McFerran’s crowning achievements was the new joint employer rule, which held big franchisors accountable for the labor practices of their franchisees and subcontractors. This rule was a thorn in the side of powerful business groups, and they were undoubtedly popping champagne after the vote.

The Huffington Post also reported that Manchin, in particular, had been vocal about his disdain for the joint employer rule, and his vote against McFerran was as predictable as a Hallmark movie ending.

Effects on Employers

Employers, on the other hand, are likely doing a victory lap. Senate Republicans and business groups now see their chance to get two business-friendly board members who presumably would tip the scales in their favor. During Trump’s first term, his NLRB appointees often sided with employers over workers, and it looks like history is about to repeat itself.

Three Key Takeaways for Human Resources and Employers, Generally

1. Anticipate Regulatory Changes: With a Republican majority expected on the NLRB, employers should prepare for potential rollbacks of pro-union rulings made under McFerran’s leadership, like the joint-employment rule.
2. Strategic Planning: Employers should take this opportunity to review and adjust their labor relations strategies. The anticipated business-friendly stance of the new NLRB majority may provide a more favorable environment for addressing union-related challenges and implementing policies that align with business interests.
3. Stay Informed and Proactive: Human resources and employment lawyers should stay updated on NLRB developments and proactively advise their organizations on compliance and strategic responses as the NLRB pendulum shifts away from unions and towards businesses. This will ensure businesses can navigate the evolving labor landscape effectively and capitalize on the more favorable regulatory environment.