Biden’s NLRB Picks Set Up Clash Over Agency Future If Trump Wins

President Joe Biden’s nominations to the National Labor Relations Board create the possibility that Democrats keep control of the board majority into 2026, even if Republican Donald Trump wins November’s presidential election.

The White House’s announcement Thursday that Biden renominated NLRB Chair Lauren McFerran and tapped Seyfarth Shaw LLP attorney Joshua Ditelberg to the open Republican seat was met with hostility from business advocates.

“President Biden is trying to hijack the NLRB in order to cement their radical policies under his administration into law,” Kristen Swearingen, head of the industry alliance Coalition for a Democratic Workplace, said in a statement.

The pair’s confirmation prospects will pit Senate Democrats’ and organized labor’s enthusiasm for protecting the work of the Biden NLRB—and for a third McFerran term—against Senate Republicans’ and the business lobby’s desire for a quick change at the NLRB in the event of a Trump election win.

McFerran’s term is set to expire in December. If the Senate doesn’t move on her renomination and Biden loses in November, then a new Republican majority could be in place in early 2025.

In that situation, Trump may mirror Biden’s Inauguration Day termination of the NLRB general counsel and swiftly install a business-friendly lawyer to replace Jennifer Abruzzo.

That would mean the Trump NLRB would be positioned to undo pro-union precedents and replace them with the type of employer-first case law that the board churned out during Trump’s first term.

But the confirmation of McFerran and Ditelberg would lock the NLRB’s roster in place until August 2026, when Democratic board member David Prouty’s term expires.

The Democratic majority could safeguard its rulings in cases like Cemex Construction Materials Pacific LLC, which eased workers’ path to unionizing; Thryv Inc., which expanded standard board remedies to include the economic consequences of the violations; and Lion Elastomers LLC, which raised the bar for workers to lose the protection of labor law for their offensive speech and conduct.

Disputed Packaging

The prospect of Democrats controlling the NLRB majority well into a Republican president’s administration “would not be acceptable to the management community,” said Roger King, senior labor and employment counsel for the employer group HR Policy Association.

Senate consideration of McFerran’s renomination should be held up “in basic fairness to the election process in November,” King said.

Although the White House presented McFerran and Ditelberg as a package, Ditelberg should be treated separately, he added.

Presidents have used bipartisan packages of NLRB nominations to eliminate the need for hearings and let nominees coast through the confirmation process without formal roll call votes.

But Biden broke with that tradition last year, when he renominated Democratic member Gwynne Wilcox while ignoring the vacancy for a Republican seat that’s sat empty since John Ring left the board in December 2022.

While it’s unclear what ultimately drove that single-nominee strategy—Biden for not tapping a GOP appointee or Senate Minority Leader Mitch McConnell (R-Ky.) for not sending the White House a candidate in time—Wilcox won confirmation, barely.

“The nomination of Mr. Ditelberg is about nine months late, because he should have been paired with member Wilcox,” said Michael Lotito, who co-chairs the management-side firm Littler Mendelson PC’s Workplace Policy Institute.

Nevertheless, the idea that the Senate would act on Ditelberg’s nomination without McFerran is a complete nonstarter under current leadership, said Celine McNicholas, general counsel and director of policy and governmental affairs at the left-leaning Economic Policy Institute.

“The last time I checked, Democrats have the majority in the Senate,” said McNicholas, an NLRB official during the Obama administration.