On May 26, 2021, President Joseph R. Biden nominated Gwynne Wilcox to fill an open seat on the National Labor Relations Board.  Wilcox is currently a senior partner at a labor-side labor and employment firm, and is assistant general counsel to the Service Employees International Union (SEIU) Local 1199 in New York.  Local 1199’s Health Care Workers East claims to be the largest health care union in the country, with more than 365,000 members, and is widely thought of as an aggressive union local. With Wilcox’s nomination, President Biden is showing his intention to fulfill his campaign promise to organized labor that he would be the “strongest labor president you’ve ever had.”¹

Wilcox has a long history of advocating for progressive policies, both with respect to labor and employment matters and beyond.  Notably, she was a member of the working group that produced a 2020 white paper entitled “Clean Slate for Worker Power:  Building a Just Economy and Democracy.”  The 132-page report calls for radical revision of our nation’s labor and employment laws.  Recommendations in the report include:

• Extending coverage of federal labor laws to domestic workers, undocumented workers, and workers who are incarcerated;
• Expanding the scope of the National Labor Relations Act to cover independent contractors, and adopting the broadest version of the “ABC test” to reclassify contractors as employees;
• Requiring “good cause” for employers to fire any workers;
• Allowing for union recognition based on so-called “card check” recognition;
• Banning the permanent replacement of workers who engage in economic strikes;
• Banning state right-to-work laws; and
• Establishing “sectoral bargaining” across industries.

While many of these changes would require congressional action to change existing laws, others could be implemented (either fully or in part) by way of decisions by the National Labor Relations Board and regulations, suggesting Wilcox could use her seat on the National Labor Relations Board to tilt existing law and policy in a way favorable to unions.

Conflicts of Interest and Potential Ethics Issues? Wilcox represented the union-backed Fight for $15 group, which advocates for a $15/hour minimum wage in a joint-employment liability case against one of the nation’s largest fast-food employers.  Given her high-profile role in that and other cases, it is very possible that, if confirmed, Wilcox will be presented with a number of cases that present conflict-of-interest issues and potentially raise questions of whether she should recuse herself from those matters.

One Step Closer to a Democratic Majority on the NLRB.  If confirmed, Wilcox will join Democrat Lauren McFerran, who currently chairs the National Labor Relations Board, and three sitting Republican members (former Chair John Ring, William Emanuel, and Marvin Kaplan).  Member Emanuel’s term expires in August of this year, giving President Biden the opportunity to nominate a third member to the National Labor Relations Board, and, if that nominee is confirmed, shift the majority of the Board from Republican to Democratic. 

Once the National Labor Relations Board has a Democratic majority, we predict that a number of high-profile issues will be revisited so as to repeal or reverse precedent set by the Board in the prior administration.  These include a range of measures, from joint-employer liability rules, to Obama-era election procedures, protected concerted activity, independent contractor status, and the ability of employees to access and use employer electronic communication systems for organizing purposes.

In short, as President Biden exercises his power to nominate to federal boards and agencies, employers should be prepared for a decidedly pro-employee, pro-labor tilt.  Littler’s WPI will keep readers informed of the status of Wilcox’s nomination and other relevant developments.