Last month, President Biden nominated union-side labor attorney Gwynne Wilcox to fill the remaining vacancy on the National Labor Relations Board (NLRB or the Board). Wilcox's appointment is significant for several reasons, not least of which is that, if she is confirmed by the Senate, she will become the first African-American woman to serve on the NLRB in its 86-year history. Importantly for employers, Wilcox's appointment also foreshadows a likely shift in NLRB positions that will directly impact labor-management matters and how employers conduct their business.
Wilcox has an extensive history of advocating for unions and union interests during her decades-long career supporting workers' rights. Most recently, she represented unions in agency matters, civil litigation, and contract negotiations at a New York labor and employment law firm known for its employee and union-related advocacy. Wilcox's philosophy toward labor relations is well documented and clear—she has devoted her career to expanding workers' rights, and this will likely be reflected in her decision-making on the NLRB.
Wilcox's appointment takes President Biden one step closer to securing a Democratic majority for the five-member Board, which currently comprises three Republicans and one Democrat. It is no secret that the NLRB's composition is impacted by political party shifts—when the presidential political party changes, so too does the NLRB's political leanings. President Biden wasted no time putting his mark on the NLRB when he terminated the Board's sitting general counsel, a Trump administration appointee, less than one hour after the presidential inauguration. Now, with Wilcox's appointment, together with NLRB Chair Lauren McFerran, the administration will have two Democratic members on the Board. When Board member William J. Emanuel's term expires this August, President Biden can be expected to achieve a 3-2 Democratic majority by replacing Emanuel with a Democratic appointee.
What does the Board's swing to the left mean for employers? We can expect certain rules promulgated under the Trump administration to be revisited by the NLRB when the Board reaches a Democratic majority. The Board's recent pro-employer decisions, such as its position on joint-employer liability rules, union election rules, and pro-management contract interpretation frameworks, are likely to be revised or rescinded. New rules promulgated by the Board are likely to reflect a more union-friendly and pro-labor philosophy. For example, a Democrat-controlled NLRB is likely to be supportive of the Protect the Right to Organize Act (PRO Act) in the event it is passed by Congress, which we wrote about in the last newsletter here. This anticipated shift to new, pro-labor rules is in line with President Biden's labor agenda: he is keenly supportive of organized labor, and Wilcox's appointment is a testament to the administration's intention to support union interests. However, if confirmed by the Senate, Wilcox may not be able to simply leave her past career at the NLRB's door—her extensive work for unions may pose conflicts of interest for some cases adjudicated by the Board, such that recusal could be appropriate.
We will continue to monitor developments regarding the NLRB's composition, new rulemaking, and the potential impact on employers. If you have any questions about the NLRB or labor relations, please contact the authors of this article.