Biden Moves the NLRB Closer to a Pro-Union Majority (US)
This week, President Biden moved the National Labor Relations Board one step closer towards having a majority of members with pro-union backgrounds. This occurred after Biden nominated his second new member to fill one of the NLRB’s five seats. Biden selected David Prouty, an attorney who has spent his career representing labor unions. If Prouty is confirmed, he will fill the seat that becomes vacant when Republican William Emanuel’s term expires this August.
Prouty is certain to approach matters in a more union-friendly way than his predecessor. Prouty has held legal positions with some of the largest and most proactive labor unions in the country. He currently serves as the General Counsel for a SEIU local union located in New York City. Before that, he served as inside counsel to UNITE Here and the Major League Baseball Players’ Association. This is the second time that President Biden has nominated a new NLRB member who had served with the SEIU, as recent nominee Gwynne Wilcox had worked for a different SEIU local union earlier in her career. Both Prouty and Wilcox also played significant roles in advancing the “Fight for $15.”
The Senate has not yet confirmed any of Biden’s NLRB nominees, but that may change soon. Biden’s nominee for NLRB General Counsel, Jennifer Abruzzo, faced significant opposition during her own confirmation hearing, in part because of the manner in which Biden abruptly discharged her predecessor, which many claim to be unlawful. Nevertheless, it appears more likely than not that these nominations will advance to a full confirmation vote, and it is somewhat unusual for the Senate to reject a sitting President’s NLRB nominee (although it has happened).
These moves will accelerate the NLRB’s current shift into a more pro-union direction. Ultimately, there is a good chance that the Democratic-majority NLRB will revisit Trump-era decisions on matters such as the joint employer standard, the scope of what constitutes “protected concerted activity” including employees’ ability to use employers’ email systems to engage in union activities, and possibly NLRB election procedures. This is particularly likely if the Pro Act does not become law. Each of these issues will have large impact on the rights and obligations of both unionized and non-union employers.