Biden Appointees Prouty and Wilcox both served as top SEIU lawyers and opposed legal standards they are now charged with defending and applying

Washington, DC (October 5, 2021) – The National Right to Work Legal Defense Foundation today submitted a letter to the National Labor Relations Board (NLRB) Inspector General (IG) and chief ethics officer, urging them to remove NLRB members David Prouty and Gwynne Wilcox from involvement in a federal case. In the case, the Service Employees’ International Union (SEIU) is suing the Board, including Prouty and Wilcox, seeking to overrule NLRB precedent regarding the “joint employer” standard.

The NLRB is a five-member federal board that enforces federal private-sector labor law and adjudicates disputes among workers, unions, and employers. The NLRB is currently being sued by the SEIU in the U.S. District Court for the District of Columbia over a rule which clarified that a company that does not exercise direct control over employee wages and working conditions cannot be charged with unfair labor practices committed by its related entities, such as franchisees.

The letter from Foundation President Mark Mix points out that the issue of Prouty and Wilcox’s recusal in this case is of interest to the Foundation because “Foundation Staff Attorneys frequently provide free legal representation to employees involved in litigation before the National Labor Relations Board against SEIU or its affiliates,” and that the same considerations “should mandate the recusal of Member Wilcox and Member Prouty in those cases as well.”

Each year Foundation staff attorneys handle more than 100 cases brought for workers at the NLRB challenging union attempts to violate workers’ rights. SEIU affiliates are among the most often cited in those cases for violating federal law. Just since 2018 Foundation attorneys have assisted workers in 67 cases against SEIU affiliates, over half of which have taken place at the NLRB. For example, a formal complaint was just issued for Foundation-represented employee Roger White against SEIU Healthcare 1199NW at Swedish Medical Center in Seattle (Case 19-CB-258889).

The letter also asks that the NLRB IG “apply the same level of vigor in examining their conflicts as he did in matters involving former Board Member William J. Emanuel.” Although the NLRB finalized its “joint employer” standard through the rulemaking process, an earlier 2017 case decision that would have adopted the same standard was vacated because the IG ruled that Member Emanuel should have recused himself. Emanuel had worked for a law firm that the IG perceived as hostile toward the old Obama-era “joint employer” standard, which the NLRB nixed in rulemaking.

Given Wilcox and Prouty’s “recent roles as lawyers advising large locals affiliated with the Service Employees International Union (‘SEIU’),” the Foundation’s letter states, “both Member Prouty and Member Wilcox have significant conflicts of interest with respect to the Litigation and with regard to the Joint-Employer rule that SEIU challenges in the Litigation.”

The letter details Member Prouty’s history as General Counsel of SEIU Local 32BJ, a powerful SEIU affiliate. It further points out that Member Prouty “played a key role in opposing the Board’s final rule on joint employment,” personally signing comments against the rule, which is further evidence of the specific conflict of interest in the pending case. The letter points out that the fact that Prouty was General Counsel for an SEIU local and not the international union does not absolve him of a conflict of interest, as the “SEIU International and its local and affiliated unions are inextricably intertwined.”

Member Wilcox’s conflicts go even deeper, according to the Foundation’s letter. It notes that Member Wilcox was at the forefront of a union campaign that openly opposed the NLRB’s “joint employer rule,” a campaign that is “specifically named as interested in, and a core part of, the Litigation.” Additionally, the letter says, Member Wilcox “played a key role in opposing the Board’s final rule in joint employment” when she worked for SEIU-affiliated law firm Levy Ratner, which filed “lengthy comments opposing that rule” while she was a partner there.

The Biden Administration has gone above and beyond in its efforts to entrench union boss influence at the NLRB. Just minutes after being inaugurated, President Biden took the unprecedented step of firing former NLRB General Counsel Peter Robb, who still had 11 months left on his Senate-confirmed term and had aggressively supported cases in which workers sought to free themselves from coercive union boss-created schemes. Robb’s replacement, Biden-appointed Jennifer Abruzzo, is a former Communications Workers of America (CWA) union lawyer who Freedom of Information Act (FOIA) records requests from the Foundation revealed was half of a two-person Biden NLRB transition team that engineered Robb’s first-of-its-kind ouster.

“The Biden Administration has already displayed some of the most biased and politically-motivated behavior within the NLRB since the agency’s inception, all in an attempt to unfairly rig the system to favor Biden’s union boss political allies over protecting workers’ individual rights,” commented Mix. “If Prouty and Wilcox’s obvious conflicts of interest are unaddressed in this case, the message from the Board will be loud and clear that ethics policies and recusal rules no longer apply now that pro-union boss Biden appointees are in power.”

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.