American working people got a final snub from two notorious former Democrats in the U.S. Senate. On Dec. 11, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona joined 48 Senate Republicans to block the reappointment of Lauren McFerran as chair of the National Labor Relations Board (NLRB).
The NLRB is an independent federal agency that administers union elections and protects workers’ union rights. But it has an unusual two-part structure: One side (the office of the general counsel) holds elections and prosecutes unfair labor practices, while the other side (the board) rules on legal challenges, kind of like a supreme court of labor law. McFerran has chaired the board since 2021 and has been part of a sweeping set of decisions that have expanded workers’ union rights in line with the original intent of the law.
The 1935 law that created the agency gives the president the power to nominate the board’s five members, and it says that three of the five must be from the president’s party and two from the other major party in Congress. Appointments require the consent of the Senate. Board members serve five-year terms. Because those terms are staggered, with one expiring each year, control of the NLRB usually doesn’t shift until a year or two after the other party enters the White House. With McFerran’s tenure over and an additional seat vacant, the current board makeup includes one Trump appointee and two Biden appointees. The Senate’s rejection of Biden’s renomination of McFerran means Donald Trump appointees could be the majority next year once confirmed by the Republican majority Senate.
McFerran’s rejection by the Senate was technically a procedural vote on whether to cut off debate and move to the actual vote. That motion failed 50 to 49, with all Democrats voting to advance McFerran’s confirmation, including all four senators from Oregon and Washington. Senator Roger Marshall of Kansas was the only Republican not to cast a vote. All other Republicans, including Vice President-elect J.D. Vance, voted to block her confirmation.
Manchin and Sinema are both leaving the Senate after declining to run for re-election this year. Manchin also voted against Biden NLRB nominee Gwynne Wilcox in 2023, but Wilcox was able to win confirmation anyway because Republican senators Lisa Murkowski and Dan Sullivan of Alaska voted in favor.
McFerran was first appointed by Barack Obama and closed out her second five-year term on Dec. 16. Before she joined the NLRB in 2014, she had served as the top lawyer for the Senate Committee on Health, Education, Labor, and Pensions (HELP), and on the staff of Senator Tom Harkin of Iowa. Because the Senate didn’t confirm her reappointment, her NLRB seat is now vacant.
THE BOARD’S CURRENT MAKEUP
- Lauren McFerran (Democrat, Obama appointee) expired on Dec. 16, 2024
- Marvin E. Kaplan (Republican, Trump appointee) expiring Aug. 27, 2025
- David M. Prouty (Democrat, Biden appointee) expiring Aug. 27, 2026
- A fourth seat, which by law would be held by a Republican, has been vacant since 2022. Biden didn’t nominate a replacement until May 23, 2024, and the Senate failed to act on his nomination of management-side labor lawyer Joshua Ditelberg. Whoever fills this seat will serve a term that expires Dec. 16, 2027
- Gwynne A. Wilcox (Democrat, Biden appointee) ending Aug. 27, 2028
