Vice President, Labor Policy, U.S. Chamber of Commerce
June 28, 2021
The Biden administration on June 22 announced that David Prouty would be nominated to serve on the National Labor Relations Board (NLRB) to fill the seat of outgoing Member William Emmanuel, whose term ends in August.
Prouty’s nomination follows that of Gwynne Wilcox, whose appointment to the Board was announced on May 26. If confirmed, the pair of nominees would join fellow Democrat Lauren McFerran, who currently serves as the Chairman despite being a minority of one on the Board. Confirmation of Prouty and Wilcox would flip control of the NLRB back to Democrats, who would hold a 3-2 majority for the first time in almost four years.
The restoration of a Democratic majority comes as no surprise given that the terms of NLRB members are staggered such that one term expires each year either in August or December and the party that controls the White House typically holds three seats. Given those facts, Emmanuel’s replacement by a Democrat marks a rather typical personnel change associated with a new presidential administration.
The more worrisome aspect of a new Democratic majority at the NLRB will be a return to the misguided policies adopted during the Obama administration, of which there were many. Indeed, there were so many harmful policy decisions during that time the U.S. Chamber published a report featuring the highlights.
The wrecking ball that the NLRB had become during the Obama era finally ended with the election of Donald Trump in 2016, or, to be more precise, at least once he was able to add enough of his own appointees to the Board to regain a Republican majority. That did not happen until the end of September 2017 when Emmanuel joined the Board, paving the way for a more balanced approach.
Since then, the NLRB has revisited many of the lopsided, anti-employer policies implemented by the Obama-era Board and, to its credit, made a fair amount of progress in restoring its proper role as a neutral arbiter of labor law. Its “journey of a thousand steps” included noteworthy shifts to the status quo ante in policy areas ranging from the appropriate size of a bargaining unit to the scope of protection for employees’ “concerted activity.”
Prouty’s appointment, like Wilcox’s, signals the current administration’s tight relationship with organized labor and its interests. He currently serves as the general counsel for the Service Employees International Union (SEIU) Local 32BJ, which represents just under 150,000 members in ten northeastern states, the District of Columbia, Florida and other parts of the United States.
If past experience is a guide, then one may expect a staunchly pro-union approach from both pending appointees. As this blog noted previously, however, these nominees’ background is certain to raise controversy over recusal issues. For Prouty, his service at the SEIU is sure to call into question his participation in any cases involving that union and any of its subordinate bodies, which could prove tricky. Then again, the standard for evaluating conflicts of interest seems to have an interesting shapeshifting characteristic depending on who’s in charge. Either way, employers may wish to brace themselves for whiplash.