Articles

June 1, 2021

Last week, President Biden nominated veteran union lawyer, Gwynne Wilcox, to fill the vacancy on the National Labor Relations Board (the “NLRB”). Wilcox is currently a Partner at the union-side labor law firm of Levy Ratner in New York. This is the same law firm that represented the employees in the Joint Employer case against McDonald’s, and where Brody and Associates represented the New York franchisees. Biden’s choice has drawn much praise from some of the largest unions in the country, while raising concerns for employer advocates.

If confirmed, Wilcox will be the first Black woman elected to serve on the NLRB. Previously, she represented workers and unions in a variety of high-profile cases. Wilcox would join the only other Democrat on the Board, Lauren McFerran, who was appointed as Chair in January by Biden. The addition of Wilcox would move the Board to a 3-2 majority in favor of the Republicans. This advantage would likely remain in place until at least August when the term for Republican-appointed Board member, William Emmanuel, expires.

Both Teamsters President, Jim Hoffa, and AFL-CIO President, Richard Trumka, have come out in support of Wilcox’s nomination and have encouraged the Senate to act quickly on her nomination.  With the Senate in a 50-50 deadlock, it will in all likelihood be Vice President Kamala Harris who casts the deciding vote on Wilcox’s nomination.  To no one’s surprise, most Republicans and employer advocates feel differently about Wilcox’s nomination, many of whom have criticized Biden for his pro-union position and his attempt to move the NLRB to the far left.

Two key areas Republicans will heavily scrutinize during Wilcox’s nomination proceedings are (i) Wilcox’s role in a nearly decades long litigation which attempted to declare McDonald’s as a “joint employer” of franchisees’ workers, and, as such, make McDonald’s liable for any violations of federal labor laws by its franchisees; and (ii) Wilcox’s  representation of the Vulcan Society, an organization of Black firefighters, in a race discrimination case brought by the U.S. Department of Justice against New York City.

Why Should Employers Care?

The NLRB plays a critical role in labor relations as it referees disputes between employers and unions. However, maybe more important is the NLRB’s role in controlling laws addressing collective actions of workers in union-free companies. For example, under the Obama Administration, the NLRB issued decisions on union-free topics such as what is a lawful social media policy and when does mandating confidentiality of an investigation of misconduct break the law! Technically, the NLRB is an independent agency, free from control of the White House; however, in reality, the sitting President makes all the nominations to the Board and appoints the Chair Member and General Counsel (Chief Prosecutor) of the NLRB (many loyal Brody and Associates readers will recall our previous article on Biden’s removal of the NLRB General Counsel, Peter Robb, on Inauguration Day – click here).   The General Counsel is responsible for deciding which cases will be prosecuted and which will not. The Board then acts as a quasi-high court for the matters presented to it – handing down decisions which leads to setting and overturning precedent.

As a result of all this, President Biden is quickly and significantly changing the NLRB’s policies and direction. 

As early as this summer, the Biden Administration, with its new General Counsel in place and a 3-2 majority on the Board, will be in position to make good on Biden’s promise to be the “most pro-union President in history.”  Stay tuned – lots more to come!

Brody and Associates regularly advises management on all issues involving unions, staying union-free, complying with the newest decision issued by the NLRB, and training management on how to deal with all these challenges.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.