Two of Joe Biden’s appointees to the National Labor Relations Board (NLRB) will not recuse themselves from resolving a dispute involving their former employer. The NLRB is an independent federal agency with five members designed to manage disputes over federal labor law.
The two Biden appointees on the NLRB are David Prouty and Gwynne Wilcox. Last week, NLRB Chairperson Lauren McFerran announced that Prouty and Wilcox have decided not to voluntarily recuse themselves from a case brought by the Service Employees International Union (SEIU). Both are former employees of the SEIU, which is the second-largest American labor union.
The case filed by the SEIU challenges the “joint employment” rule enacted during the Trump administration. That rule makes a legal distinction between franchisees and their parent corporations.
When Prouty worked at the SEIU, he opposed the adoption of the joint employment rule. Wilcox has previously worked with organizations that also opposed the rule. Unions, in general, oppose the joint employment rule because it makes it more difficult for parent corporations to be held jointly liable for violations committed by franchise holders. The SEIU would like to change the rule to make it easier for the union to sue more giant parent corporations when it is claimed that franchisees have violated some provision of labor law.
The NLRB Inspector General has recommended that the board vacate decisions in the past because of conflicts of interest involving board members. A 2017 decision was set aside when it was discovered that William Emanuel had worked for a law firm representing a party to the case before the board. Emanuel was appointed to the NLRB by President Trump.
Prouty replaced Emanuel on the NLRB. He acted as general counsel for a branch of the SEIU from 2017 until his appointment by Biden. He signed the letter opposing the rule in 2019 that he will now review as an official member of the board.
Wilcox served as an attorney for a branch of SEIU representing employees of United Healthcare. She also represented a group affiliated with SEIU that filed other lawsuits opposing joint-employer laws.
McFerran announced the decision not to recuse in a letter to Republican lawmakers who had asked for a ruling. The letter stated that an ethics officer believed that Prouty and Wilcox would not violate ethics rules by participating in the case.
The SEIU contributed $13 million to Democrat politicians in 2020, including $8 million to the Biden campaign.
Patrick Semmens with the National Right to Work Foundation said that this case shows that the two Biden appointees “can’t even be bothered with the appearance of impartiality” while supporting their former employer’s political desires.