Biden Picks 32BJ Lawyer for NLRB

WASHINGTON—President Joseph Biden announced June 22 that he has nominated David M. Prouty, general counsel for the SEIU 32BJ union, to fill a soon-vacant seat on the National Labor Relations Board. If Prouty and previous appointee Gwynne Wilcox are confirmed by the Senate, it would give Democrats a 3-2 majority on the NLRB.

Prouty, the property-services workers union’s lead attorney since 2018, has more than 30 years’ experience as a union lawyer. He worked for the Major League Baseball Players Association as general counsel and, earlier, chief labor counsel, from 2008 to 2017, and for four years before that, was general counsel of UNITE HERE. He would replace Trump appointee William J. Emanuel, a lawyer for the union-busting firm Littler Mendelson, whose term ends on Aug. 27.

Unions hailed the nomination. SEIU 32BJ President Kyle Bragg called it “a home run for strengthening labor rights and worker-centered standards in our country, and restoring the NLRB’s core function to protect the interests of workers.” AFL-CIO President Richard Trumka, posting on Twitter June 22, praised Biden for “acting quickly to return a pro-worker majority to the NLRB.”

SEIU International President Mary Kay Henry said in a statement that after four years in which “the Trump-appointed corporate lawyers who comprise the majority of the NLRB board” have “relentlessly sabotaged” workers’ rights to organize and collectively bargain, Prouty’s appointment “is critically important to begin reversing the damage.”

International Association of Machinists International President Robert Martinez Jr. praised Prouty’s “life-long commitment to protecting workers’ rights” and “in-depth understanding of the National Labor Relations Act” and its practical and legal intricacies, saying they made him “particularly well-suited to be a member of the NLRB.”

The Teamsters tweeted that “we know Prouty will be a strong advocate for fairness for workers.” AFSCME President Lee Saunders said in a statement that the union was “pleased that President Biden has nominated a person with such outstanding credentials,” and that Prouty was “the right person, at the right time, for this job.” 

The NLRB currently has a 3-1 Republican majority, with one seat vacant. In May, Biden nominated Gwynne Wilcox, a longtime union-side lawyer and associate general counsel of 1199SEIU United Healthcare Workers East, to fill the vacancy.

If the two are confirmed, it would switch the balance of power on the NLRB, which has seesawed between pro-union and anti-union depending on which party holds the majority. The Obama NLRB in 2015 expanded when employers could be considered “joint employers” responsible for labor-law violations by their subcontractors or franchisees; the Trump NLRB reversed that in January 2020 (after its ethics officer nullified a previous reversal because Emanuel had a conflict of interest).

In 2014, the board established a rule that enabled votes on whether to join a union to be held as quickly as 11 days after a petition for representation is filed. Its intent was to speed up the election process so employers wouldn’t have time to do things like firing union supporters. The Trump NLRB, responding to employers who complained about “ambush elections,” lengthened the minimum to 20 days in 2019, and also gave more time for litigating issues such as the scope of the proposed bargaining unit and which workers are eligible to vote. 

The AFL-CIO challenged that rule, and in May 2020, just before it went into effect, federal District Judge Ketanji Brown Jackson struck down most of it, on the grounds that the board had made substantive changes to the established rule without giving the public an opportunity to comment. The NLRB, arguing that the changes were merely procedural, has appealed.

The Senate’s 2013 vote eliminating the filibuster for executive-branch nominations might stymie Republican attempts to block confirmation of the two nominees. Senate Republicans had refused to allow consideration of any of President Barack Obama’s appointments to the NLRB — which left the board with only two members, unable to act because it lacked a quorum. “Given its recent actions, the NLRB as inoperable could be considered progress,” Sen. Lindsey Graham (R-S.C.) declared in 2011. 

Obama tried to circumvent that by appointing three new members while the Senate was supposed to be in recess, but the Supreme Court ruled that unconstitutional in 2014 — and invalidated rulings those members had been involved in — on the grounds that the Senate had held “pro forma” sessions, where no business was conducted, often enough to avoid being formally in recess.