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Lauren McFerran discusses the National Labor Relations Board and the future of independent agencies.
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In a conversation with _The Regulatory Review_ , Lauren McFerran, former chair of the National Labor Relations Board (NLRB), discusses the central role of the NLRB in enforcing federal labor law, examines how the agency’s independent structure shapes its decision-making, and considers how an end to for-cause removal protections for independent agency heads could impact labor policy.
President Franklin D. Roosevelt signed the National Labor Relations Act (NLRA) in 1935, establishing certain rights for workers—such as the right to join and form a union—and creating the NLRB as a forum to enforce these rights. As McFerran explains, the NLRB is “the only game in town” for workers, as only the NLRB’s General Counsel can initiate cases and only the NLRB’s Board can initially decide them.
The NLRB has historically functioned as an independent agency. The U.S. Congress provided in the NLRA that the President may remove a member of the NLRB’s five-member Board only for cause. Board members serve staggered five-year terms that extend beyond a single presidential administration. McFerran argues that insulating the Board from direct presidential control allows the agency to make decisions “based on expert analysis of the law, not political interference.”
McFerran raises concern that, in the pending case of _Trump v. Slaughter_, the U.S. Supreme Court will overturn its landmark 1935 decision in _Humphrey’s Executor v. United_ States, which allows Congress to prohibit the President from removing the heads of multimember agencies such as the NLRB without cause. McFerran warns that, if the Court overrules _Humphrey’s Executor_ it will leave each new President free to “wipe the labor law slate clean” by removing existing and appointing new Board members.
McFerran served as a member and chair of the Board during the Biden Administration from 2021 to 2024 and as a member of the Board from 2014 to 2019 and from 2020 to 2021. McFerran previously served as the deputy staff director of the U.S. Senate Committee on Health, Education, Labor, and Pensions. She clerked for Chief Judge Carolyn Dineen King of the United States Court of Appeals for the Fifth Circuit.
_The Regulatory Review_ is pleased to share the following interview with Lauren McFerran.
**_The Regulatory Review_****: What does the NLRB do?**
_McFerran_ : The NLRA is a 90-year-old law that gives workers a legal right to form and join unions and to bargain collectively for better wages and working conditions. The NLRA also protects workers from retaliation when they join together and speak up about unfair treatment, whether in a union or not. Almost all private sector workers—not just those who are in unions or want to be in a union—have important rights under this law.
The NLRB is the agency that enforces this law. If workers think that their employer has violated their rights—such as by firing them for trying to form a union or disciplining them for collectively protesting unsafe working conditions—they can come to the NLRB. The agency’s general counsel will investigate and prosecute their case if it appears that an unfair labor practice has occurred. If the parties cannot reach a settlement, the case will be tried before an agency judge and, ultimately, the Board, which acts as a court of appeals.
Importantly, the general counsel is the only one who can bring a case before the Board—workers cannot bring claims on their own. And only the Board can initially decide these cases. Workers cannot bring these claims to federal courts until the Board has spoken, at which point they can ask a federal court to review a Board decision. The NLRB is the only game in town, so its work is critically important to make workers’ rights a reality.
**_TRR_****: How does the NLRB’s structure as an independent agency affect the way it carries out its mission?**
_McFerran_ : The NLRB was designed by Congress with many of the classic characteristics of an independent agency. Board members are, or at least historically have been, protected from removal by the President except for cause, and they serve staggered terms of five years—longer than any single presidential administration. The agency has historically had the ability to make its own regulations without involvement from the White House, and it has had independent litigating authority in all federal courts except the Supreme Court. The NLRB has always controlled its own budget, internal management, and communications with Congress and the public as well. Insulating the NLRB from direct presidential control in these ways allows the agency to make decisions based on expert analysis of the law, not political interference.
The independence of the NLRB is particularly critical because it is one of a number of multimember agencies that do business mostly through administrative adjudication rather than issuing regulations. In other words, the agency decides individual cases, and it makes policy primarily through its precedents in these individual cases, much like a court system. Board members are charged with adjudicating each case on its merits free from influence by personal interests or the political process. The Board’s decision-making procedure must provide parties with due process. The Board keeps its deliberations confidential and communications with parties or outside entities about pending cases violate ethics rules.
The NLRB has been able to fulfill its mission and maintain national labor peace because parties who appear before the Board trust that it will provide a fair process. Independence is a necessary foundation for that trust. The NLRB has always enforced the law without regard for whether the employer or union in question might be a close ally of the President or a supporter of the President’s political party. Undermining the agency’s independence and allowing political favoritism to influence its decision-making would undermine the public’s trust, potentially compelling workers, unions, and employers to consider alternative, and potentially more disruptive, strategies when labor disputes arise.
**_TRR_****:****You have recently****written****in a recent report about the Trump Administration’s “historically unprecedented” decision to remove independent agency officials without cause, including the NLRB’s chair Gwynne A. Wilcox. How did those actions by the Trump Administration depart from prior practice?**
_McFerran_ : Most obviously, Wilcox was the first Board member in history to be removed from office by the President. But more significantly, her termination was clearly unlawful because it was based on policy disagreements. When Congress designed the NLRB, it wanted Board members to have some level of insulation from the political process so that they could fairly adjudicate cases. Thus, the NLRA provides that Board members can only be removed from office “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” Wilcox received no advance notice or hearing before her termination, and the letter that she received removing her from office did not purport to allege any “neglect of duty” or “malfeasance in office.” Instead, it referred to policy disagreements and disagreement with her decisions in particular cases as the rationale for her removal. Her removal both violated the clear language of the statute and undermined the way the Board is supposed to operate. No Board members in history, until now, have had to worry that they would be summarily removed from office for deciding a case in a manner that the President disagrees with. Moving forward, this looming threat could fundamentally change how the Board operates.
**_TRR_****: In that same report, you****argue****that the functions of independent agencies will be “compromised” if brought under the direct control of the President, creating “tremendous potential for abuses of power.” How so?**
_McFerran_ : Independent agencies are often structured as such by Congress because they are supposed to perform essential watchdog functions—protecting individuals such as workers, consumers, and retirees from being abused by better-resourced and more powerful corporate actors. Although government agencies have enforcement authority that can serve as a check on corporate power, independent agencies are unique in their ability to hold powerful actors accountable, regardless of political influence. The structure of independent agencies also promotes stability and prioritizes expert decision-making on topics of critical national importance.
The recent attacks on the independence of these agencies—through the unprecedented firing of agency leaders and promulgation of executive orders seeking intrusive White House control over these agencies’ day-to-day operations—compromise the integrity of their decision-making and jeopardize their ability to serve their missions. These agencies cannot do their jobs when the White House can order them to act in a manner contrary to law or to use enforcement tools in a manner that targets political enemies or favors political allies.
We have already seen examples of these kinds of abuses at independent agencies. The U.S. Equal Employment Opportunity Commission (EEOC), for example, recently dropped lawsuits it had filed on behalf of transgender workers. Although agreeing that these workers are protected under civil rights laws, EEOC chair Andrea Lucas explained to Congress that she dropped the cases because her agency is not independent and must comply with President Trump’s executive orders targeting transgender and nonbinary people. At the direction of the White House, the EEOC has also targeted specific law firms—some known for representing Democrats in election cases—with unprecedented investigations that were initiated without following the agency’s own procedural rules.
**_TRR_****: How does the dismissal of Wilcox impact the NLRB’s day-to-day operations?**
_McFerran_ : Until very recently, Wilcox’s dismissal had effectively shuttered the agency. The Board is supposed to have five members, and the U.S. Supreme Court has said it must have three members to decide cases. Because there were already two vacancies on the Board at the time of her dismissal, Wilcox’s illegal termination left the Board without a quorum and unable to hear cases. Although the agency was still operating during this time, any employer that wanted to challenge the results of a union election or an unfair labor practice determination could simply appeal to the Board and stall its case indefinitely. Although the confirmation of two new members in January 2026 has now restored quorum, the Board was without a quorum for almost a full year. This has resulted in a tremendous backlog of cases that need to be adjudicated. Workers who want to join a union or who think their rights on the job have been violated have been waiting in limbo for a year and will now wait still longer for justice.
**_TRR_****: The Board has often had members from both political parties. What is the benefit of bipartisanship in administrative agencies?**
Although the Board is not required to be bipartisan by law, the Board has traditionally had members from both parties, with the goal of having three members of the President’s party and two members of the party not occupying the White House. In the past, control of the Board has not changed automatically with changes in the presidency, because seats could not be filled with new members until the terms of sitting members expired. Presidents would typically gain control over the agency within a year or so into a new term, and would often nominate bipartisan packages of nominees to serve on the Board in order to facilitate smooth confirmation of new members.
The Board’s long bipartisan tradition serves its deliberations well. Historically, around 80 percent of the Board’s cases involve routine applications of well-settled law that are decided unanimously. Unanimous decision-making on a bipartisan board requires moderation by both sides—agreeing not to reach extraneous issues or to take positions on controversial matters unnecessary to the disposition of the case. This moderation facilitates more efficient decision-making and stability in the law.
For those cases where the Board has disagreements, the presence of dissenting voices affects the decision-making process in a number of ways. Most obviously, the majority has to respond to the dissenting opinion(s) and will often modify or moderate the majority position in response. More practically, it is a lot more work for the agency to prepare a case where there is disagreement—traditionally, all five Board members participate in such matters, and the written decisions are lengthier and more time consuming to produce. These practicalities require the Board majority to “pick its battles” in determining whether to revisit precedent in a case—again, promoting stability in the law.
**_TRR_****: If _Humphrey’s Executor_ is overturned and independent agency heads lose for-cause removal protections, how might that shift affect the Board’s decision-making or the stability of labor policy across administrations?**
The Board has historically been criticized for its policy oscillation or “pendulum swings”—where interpretations of the scope of the NLRA’s protections shift when the Board is controlled by one party and then shift back when controlled by the other party. But, as I have explained, the bipartisan nature of the Board and the Board’s carefully designed structure—with Board members serving five-year staggered terms, and one member’s term expiring each year—are factors that mitigate against these pendulum swings and promote stability in federal labor policy. Although it is certainly true that there are some legal doctrines that have shifted back and forth over time, many of the fundamental legal principles that the Board relies on are well-settled and not subject to regular revisiting.
This could all change if the Court ends for-cause removal protections at the NLRB. Giving the President free rein to fire all members of the opposition party to eliminate dissent—or to fire all sitting Board members and appoint an entirely new Board of the President’s choosing with each new administration—would undermine the concept of precedent and jeopardize predictability in the law. Board members would have no incentive to moderate their decisions in routine cases, or to “pick their battles” in deciding what precedents to revisit if there are no dissenting voices to worry about. There would be few constraints left on a new Board’s ability to essentially wipe the labor law slate clean with each new administration.
And, certainly, there would be no incentive for Board members to adhere to precedent, or even decide like cases similarly, in the face of a President’s ideological disagreement or contrary political preferences. Each Board member’s job would be on the line with every decision the Board issued. It is hard to imagine that labor or management could retain faith in a Board that has no real precedent or predictability and fails to adhere to basic tenets of due process.
Tagged: Labor, NLRA, NLRB
Labor Regulation and Agency Independence Lauren McFerran discusses the National Labor Relations Board and the future of independent agencies. The post Labor Regulation and Agency Independence first...
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