Biden Appointees Will Not Recuse Themselves From Union Case Brought by Former Employer

NLRB members David Prouty and Gwynne Wilcox served as counsel for SEIU

November 9, 2021

Two of the nation's top labor arbiters will not recuse themselves from a case involving their former employer, a chief Democratic Party ally.

David Prouty and Gwynne Wilcox serve on the five-member National Labor Relations Board, an independent federal agency that dictates labor laws. Board chairman Lauren McFerran announced Friday that the pair will not recuse themselves from a lawsuit filed by the Service Employees International Union, their former employer and the nation's second-largest union. The SEIU is challenging a Trump-era "joint employment" rule, which holds that franchises are distinct from parent companies.

Prouty directly opposed the Trump rule at the SEIU, and Wilcox worked with groups that fought the changes. Their failure to recuse themselves from the case could lead to a favorable ruling for their former employer. Unions largely oppose the rule, which makes it harder for parent companies to be held liable for violations committed by franchisees. The SEIU and other labor groups are pushing for a broader definition of "joint employers," which would make it easier for them to sue large corporations when franchisees violate labor laws.

The NLRB has a history of asking for recusals in joint employer cases. The board vacated a 2017 decision on the issue after it ruled that Trump-appointee William Emanuel had a conflict of interest. Emanuel had no connections to the parties in the lawsuit, but the NLRB inspector noted that his former law firm represented a group in a case the 2017 decision overturned.

Sen. Mike Braun (R., Ind.) told the Washington Free Beacon that the NLRB is inconsistent in asking for recusals.

"The swamp is back to their usual hypocrisy, and the National Labor Relations Board's double standard on what constitutes a conflict of interest is an obvious case of politics winning over ethics," Braun said.

In a letter to Republican lawmakers, McFerran said an ethics officer ruled Prouty and Wilcox would not violate any rules or regulations by ruling on the case. The NLRB declined to comment.

Glenn Taubman, a staff attorney at the National Right to Work Foundation, said unions want to reclassify major companies as joint employers to boost their organizing efforts. At the moment, unions have to organize each franchise individually. But under an expanded rule, they could unionize an entire company and all its franchises at once.

"This is to grease the path to maximal unionization," Taubman told the Free Beacon. "It has the smell of a collusive lawsuit."

Prouty, who replaced Emanuel on the board, served as general counsel for SEIU Local 32BJ from 2017 until his appointment in June. Prouty signed on to the union's 2019 letter in opposition to the Trump-era joint employer rule at the center of the case he will review.

Wilcox served as associate general counsel of 1199SEIU United Healthcare Workers East. One of her clients as a labor lawyer was "Fight for $15," an SEIU-affiliated group that has filed its own lawsuits in opposition to Trump-era joint employer laws.

Rep. Virginia Foxx (R., N.C.), a ranking member on the House Committee on Education and Labor, said McFerran's letter dodges clear ethical questions on how the NLRB will handle the case.

"Prouty and Wilcox's prior affiliation with the SEIU excludes them from being impartial arbiters, and we will be following up on the NLRB's completely inadequate response to our concerns," Foxx told the Free Beacon.

The SEIU and its PAC spent $13 million in total to elect Democrats in 2020, including $8 million to help elect President Joe Biden. Patrick Semmens, vice president of the National Right to Work Foundation, said the NLRB under Biden has become increasingly partisan in favor of top Democratic Party donors.

"Wilcox and Prouty were appointed to the NLRB by President Biden specifically to help expand the coercive powers of Biden's big labor political allies," Semmens told the Free Beacon. "What this episode shows is that Wilcox and Prouty can't even be bothered with the appearance of impartiality as they push the agenda of their former union colleagues."