NLRB’s Mysterious New Member Dodges Important Questions, But Stresses Need for Fully Staffed Board

On December 16, Nancy Schiffer’s term on the National Labor Relations Board will end. Sharon Block was set to take her place but the Obama administration abruptly withdrew her nomination on November 12, 2014.

Lauren McFerran, formerly the chief labor counsel and deputy staff director of the Senate HELP Committee is the next nominee in line.

The NLRB has some very important cases before it including whether or not student athletes should be unionized, whether or not unions can use a company’s email to organize, and whether or not a union can get the private information of workers they are attempting to unionize. The most important case by far, however, is the joint employer case.

With the NLRB potentially reclassifying a decades-old joint employer rule to devastating and systemic impact on the economy, those familiar with the issue were eagerly waiting to hear McFerran’s position. Would she support NLRB General Counsel Richard Griffin’s authorization of complaints against McDonald’s, thus blurring any meaningful distinction between franchisee and franchisor and classifying most business relationships as joint employer relationships?

The short answer is that no one knows. The only indication McFerran gave about her beliefs in the Senate HELP Committee hearing was when she described herself as “pro act,” meaning that she was trained not to desire a specific outcome but only to look at the facts and try to give the right answer. Besides that, McFerran didn’t give us much to go on besides saying vaguely positive things about how her role, if confirmed to the NLRB, would be to solve real problems for real people and reach across the aisle.

When Sens. Lamar Alexander (R-Tenn.) and Richard Burr (R-N.C.) asked her directly about the joint employer controversy, she would only say that she could not give an opinion on the controversy since it would be one she would have a role in resolving if confirmed to the Board.

Sen. Alexander also asked McFerran if she thought it was appropriate for student athletes to be unionized, since they receive full scholarships that pay many of their living expenses. Again McFerran dodged the question by saying she could not give an opinion since the question was also one that would come before her if confirmed.

Sen. Burr, taking into consideration McFerran’s reservations about giving a decisive opinion on a case she would preside over, asked a more general question: “Are there any limitations to what the NLRB can do to determine how many people who don’t actually pay the check are in the chain of liability for joint employer?”

McFerran answered, “If the issue were to come before me as a Board member, all I can pledge to you is that I would consider it with a very open mind, I would look at the arguments presented to me in the case, I would review the record, I would consult with my colleagues, and I would review the issue with a completely open mind.”

Well, McFerran might be open-minded, but the bad news here is that if somebody wants to be confirmed to a position on the NLRB, all they have to do is say vaguely positive things.

Sen. Burr responded by saying, “I’ll continue to editorialize a little bit,” and I’ve never been more relieved to hear a politician say that they’re going to elaborate on their opinions. The hearing was saved from being resigned to the dreaded, “Most Uneventful Hearings in History” list.

Burr rightly pointed out that the precedent set by Griffin’s decision to authorize McDonald’s corporate to be sued for unfair labor practice charges against their local franchises granted the government an inappropriate level of authority over private business relationships: “…That somebody that isn’t involved in the management, the contraction of an employment, the payment of a check, the funding of the check, is somehow in the chain of liability if in fact [the] employer makes the wrong decision, has implications to economic growth that could be devastating in this country.”

Burr also pointed out that if student-athletes are unionized and the joint employer standard is changed, the implications would be that donors who provide the sports and academic scholarships, which help students pay for school, could also be classified as employers. That extension of liability to donors would discourage scholarships of all kinds, to devastating effect on the ability of kids to get through college.

The floor then turned to Sen. Al Franken (D-Minn.), who provided some comic relief when he cited research from a union-funded think tank to prove that unions benefit the middle class. Franken also asked softball questions like, how much would workers benefit from a fully staffed NLRB?

McFerran unsurprisingly said that a fully staffed Board was vital to the “smooth running of an economy,” finally expressing an opinion. It seemed that, besides being “pro act,” the only topic that McFerran had a strong opinion on was the need for the NLRB to be fully staffed so that it could swiftly resolve labor disputes, which would keep the economy functioning smoothly.

While it’s not novel for a bureaucrat to advocate for the expansion of their agency as the key solution to America’s problems, McFerran’s passion for a fully functioning Board was notable in the absence of passion for any of the important issues that she would be resolving on the Board.

When the floor turned to Sen. Elizabeth Warren (D-Mass.), I had to laugh when she asked a question that aptly summarized the Democrats’ aversion to asking tough, important questions during the hearing and rushing McFerran through the confirmation as quickly as possible:

“Let me just ask you about what you think are your best qualifications for serving in this role and what you think you could bring to it?”