Harder Courtroom Tests Challenge Labor Board, Former Chair Says

The National Labor Relations Board in recent years had to adapt to federal courts taking a much harder look at its work, from major decisions and regulations to routine, day-to-day rulings, the board’s former chair said.

That increased judicial skepticism forced the NLRB—which needs courts to enforce its orders—to justify conclusions that would have been viewed through a deferential lens in years past, Lauren McFerran said in an interview Tuesday.

“Anticipating the need to pursue enforcement in a court system that is, I’m not going to say necessarily more hostile, but certainly more searching in its scrutiny, has been a challenge that’s developed and become much more prominent over the course of my time at the board,” she said.

McFerran spoke to Bloomberg Law 29 days after she left the NLRB, where she served across three presidential administrations. During her time as chair, the board navigated resource woes on the way to issuing precedent setting decisions that moved labor law in a more worker- and union-friendly direction, even as the number of union election petitions skyrocketed.

She was prepared to continue for another five-year term on the board, but the Senate rejected her nomination by a razor-thin margin late in 2024.

McFerran said she’d developed an expertise in labor-management relations over the course of adjudicating nearly 2,000 cases at the NLRB, first as a member of a board majority, then the minority, and finally as chair. But courts have grown less deferential to agency expertise across the administrative state, she said.

That growing unwillingness to yield to agency expertise that McFerran experienced is separate from the US Supreme Court ending judicial deference to agency interpretations of statutes with its ruling in Loper Bright Enterprises v. Raimondo.

The board encounters “much harder-look scrutiny to everything” it does, even its factual determinations and applications of law to fact, she said.

Joint Employer

The intensifying barrage of constitutional challenges the board faced over the past year is part of the larger phenomenon of court skepticism of the administrative state, McFerran said.

“When you have a court system that has signaled its receptiveness to reconsidering questions thought to be long settled, an advocate’s going to throw stuff against the wall and see what sticks,” she said.

In another sign of judicial resistance to agencies, one of the NLRB’s major projects under McFerran’s leadership ran aground in a Texas courthouse last March, when a Trump-appointed district judge blocked the board’s regulation to loosen the standard for determining when multiple businesses jointly employ the same workers.

While joint employer disputes are a rarity at the NLRB, the legal test for joint employment was an issue that followed McFerran through her decade on the board.

She was part of the majority that issued the contentious Browning-Ferris Industries of California, Inc. decision in 2015. An all-Republican board repealed Browning-Ferris and set a narrower test through a regulation issued in early 2020, during the eight-month break between McFerran’s first and second terms.

McFerran said the board chose to write a new joint employer regulation rather than repeal the rule from the first Trump administration in an effort to provide clarity to an issue that was in flux in the wake of previous litigation.

The NLRB’s ultimately unsuccessful attempt to address the joint employer standard through rulemaking appeared to cost it more than just the time and resources necessary to push the measure through the regulatory process.

Independent Sens. Joe Manchin (W.Va.), Kyrsten Sinema (Ariz.), and Angus King (Maine) joined Republicans in rejecting the rule. Manchin and Sinema, former Democrats who once caucused with the party, would go on to vote against McFerran in a 49-50 procedural vote that doomed her bid for a third term.

Highs, Lows

In the period between her nomination and confirmation, McFerran found herself the target of critical editorials in the Wall Street Journal that characterized her as “lawless” and an “anti-worker warrior,” as well as an op-ed that accused her of placing “labor unions’ demands over workers’ rights.”

McFerran said she got caught up in a political battle over the control of the board that wasn’t really about her personally.

“I did have to tell my kids to avoid googling my name there for a while,” she said.

Despite her nomination being turned into a political football, McFerran didn’t name the confirmation battle as the low point of her tenure as NLRB chair. Instead, she pointed to the hard deliberations that took place when the agency was contemplating furloughs due to budget restraints.

For her high point as board chair, McFerran cited election statistics showing that the NLRB’s rule on voting procedures had a significant impact in making the process for workers to choose union representation move more quickly and efficiently.

That rule might be an early target of the NLRB when Republicans take the majority in the second Trump administration, McFerran said. But making a persuasive argument to get rid of a rule that’s improved election petition processing during a time of high demand may be difficult, she said.

“I’ll be very curious to see how easy it is to say, ‘No, we should make it work less efficiently,’” she said.