The White House on May 26 announced that the President intended to nominate Gwynne Wilcox to fill the lone vacancy on the National Labor Relations Board (NLRB), which currently has a 3-1 Republican majority. A partner at the union-side law firm Levy Ratner, Wilcox will join fellow Democrat Lauren McFerran, who was made board Chairman when President Biden took office in January.
Although her nomination is perhaps unsurprising, Wilcox’s background is certain to raise controversy over recusal issues. While there was much hullabaloo at the time about Republican Member William J. Emmanuel’s alleged conflict of interest when it came to the joint employer issue, the conflict in Wilcox’s background seem far more pronounced.
In particular, she reportedly represented the union-backed Fight for $15 group, which has been harassing employers in the fast food industry since 2012 and advocated for franchisors to be held liable as joint employers of their franchisees’ employees. That may force her to recuse herself when it comes to addressing issues like the joint employer standard.
Assuming she is confirmed, though, Wilcox will make the partisan split at the NLRB 3-2, for now at least. That situation will change in August this year with the expiration of Emmanuel’s term, at which point the Board will be deadlocked 2-2 absent an appointment to fill his seat. Although it took four months to name Wilcox, perhaps that was because it would not have made a difference as far as the majority goes, and one might expect a replacement for Emmanuel to be named more quickly. After all, the administration demonstrated its eagerness to reverse the policy achievements of the Trump administration when it took the aggressive and unprecedented step of removing the Republican General Counsel, Peter Robb, on Inauguration Day, prior to the expiration of his term.
When Democrats do regain the majority at the NLRB,, employers can expect a return of many of the errant, lopsided policies adopted during the Obama administration, including a renewal of an absurdly expansive interpretation of so-called Section 7 rights, an attempt to revive the Board’s flawed joint employer standard, a return of small bargaining units known as micro-unions, and many others that the current majority has assiduously tried to address in its effort to restore common sense at the NLRB for the last four years.
Regardless of what a Democratic Board majority might undertake to advance the interests of organized labor, Congress may have something to say as well in the form of the Protecting the Right to Organize (PRO) Act, which it is currently considering. Many of the policies in the PRO Act could be adopted by the NLRB, albeit without the imprimatur of legislation, such as mandating access to employers’ email systems, the use of mail-in ballots for representation elections, and others. Indeed, the current state of limbo for the PRO Act may cause the NLRB to act more forcefully. So, while stopping the PRO Act is critical, employers should not rest easy. The pendulum swing of the NLRB is just a matter of time.
About the authors
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
