The balance of power at the National Labor Relations Board swung from union-busters to union lawyers in the span of an afternoon in late July when the U.S. Senate confirmed President Joe Biden’s two game-changing nominees.
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| The 1935 National Labor Relations Act makes clear in Act 1 that it is the policy of the federal government to encourage collective bargaining and protect workers’ rights. In words and deeds, the Biden administration has embraced those principles more than any presidency since FDR’s. |
All 50 Democrats and a handful of Republicans voted to seat Gwynne Wilcox and David Prouty, bringing an end to four bleak years for wronged workers seeking justice from the NLRB.
The confirmations restore a 3-2 pro-worker majority on the Board, capping a landmark July for federal nominees who embody Biden’s promise to be the “most pro-union” president ever.
On Day 1 Biden signed the first in a stack of executive orders benefiting workers and boldly fired the NLRB’s aggressively anti-union general counsel. Two weeks later, he nominated a card-carrying Boston tradesman to head the U.S. Labor Department.
Now, Secretary Marty Walsh and other new leaders and staff at agencies under the DOL umbrella are steering the institutions back to their roots, reaffirming their statutory duty to protect workers from employer abuses.
“President Biden is booting the foxes from the hen houses as fast as he can, and he’s arming his new hires with stronger policy and enforcement tools than we’ve seen in generations,” International President Lonnie R. Stephenson said.
“He is literally rebuilding the federal infrastructure that workers and unions depend on. When he talks about ‘building back better,’ he doesn’t just mean roads and tunnels and technology. He means us.”
More than any other president, Biden has used the White House bully pulpit to champion labor, reminding Americans again and again that unions built the middle class.
His nominees, especially for jobs that hold sway over workers, have lived and breathed those values. In June, he chose a former union organizer, Jennifer Sung, to serve on the Ninth Circuit Court of Appeals. Her confirmation is pending.
Currently, Sung is a judge on the Oregon Employment Relations Board. A colleague said she’s the perfect choice: “She has represented working people. Not many people on the bench have done that.”
AT THE NLRB, Prouty and Wilcox, the first Black woman to serve on the Board, aren’t the only recent newcomers.
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| Union-side labor lawyers David Prouty and Gwyne Wilcox, the first black woman to serve on the NLRB, were confirmed by the U.S. Senate on July 28, restoring a pro-worker majority to the five-seat board. |
In a tie vote broken by Vice President Kamala Harris, the Senate confirmed a third union-side attorney, Jennifer Abruzzo, as general counsel July 21.
Abruzzo most recently worked for the Communications Workers of America but spent 22 earlier years with the NLRB, rising from a field attorney in Miami to deputy general counsel during President Obama’s second term.
She even had a fleeting stint as acting general counsel in November 2017 but was quickly displaced by Peter Robb, a union-busting Trump nominee who cut his teeth helping President Ronald Reagan fire the nation’s air traffic controllers in 1981.
Robb’s career came full circle when a letter arrived in his inbox moments after Biden took the oath of office Jan. 20. Resign by 5 p.m. or be fired, he was told. He refused.
Lawsuits followed, arguing that Biden acted illegally because Robb had 10 months left in his term. Ruling on one of the cases in July, a New Jersey federal judge disagreed based on language in the National Labor Relations Act.
Robb wielded enormous control over NLRB cases, backed by an equally hostile Board that routinely sided with management.
Under their watch, employers won license to search workers’ cars and personal items, eject union organizers from public spaces, more easily withdraw union recognition, thwart protests and disregard the plight of workers at subcontractors and franchises, among other expanded powers.
Senator Patty Murray, chair of the Health, Education, Labor and Pension Committee, decried the wreckage in urging her colleagues to confirm Wilcox and Prouty on July 28.
“While Democratic nominees to the NLRB were blocked and anti-worker nominees were jammed through, we saw decades of worker protections reversed,” Murray said.
“This has had a devastating impact on workers across the country, who are not only struggling through a pandemic, but who have also seen their rights to strike, organize, and bargain collectively, undermined and constrained in ruling after ruling.”
THE FIVE-SEAT Board is meant to be split 3-2, tilted toward the party in power in the White House. But for two years during the last administration, the GOP-led Senate refused to fill Democratic vacancies.
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| New NLRB General Counsel Jennifer Abruzzo, a career advocate for workers, was confirmed July 21 on a 50-50 tie vote in the Senate that was broken by Vice President Kamala Harris. |
One seat was left open, then two, after member Lauren McFerran’s term expired in December 2019. For nine months, workers didn’t have a single advocate on a board that was established nearly a century ago to guard their rights.
McFerran, who wrote blistering dissents that exposed twisted logic and vast holes in the majority’s decisions, finally won a second term when then-Senate Majority Leader Mitch McConnell relented in August 2020.
Biden promoted her to Board chair on Inauguration Day, but she remained the lone Democrat until Wilcox was sworn in Aug. 4. Prouty will take his oath after Republican William Emanuel’s term expires Aug. 27.
Wilcox, a partner at a New York law firm representing unions, and Prouty, who hails from SEIU’s large mid-Atlantic chapter, have had long careers fighting for workers.
“Ms. Wilcox’s experience as a field attorney for the NLRB, as a lawyer representing workers before the Board, and defending health care workers and protecting their rights makes clear that she’s got the right qualifications and values for the job,” Murray said on the Senate floor.
The president of SEIU 32BJ, where Prouty has represented textile and service workers, as well as baseball players, said Biden hit a home run with his choice.
“Our union couldn’t be prouder,” Kyle Bragg said. “As much as it saddens us that he will no longer work with us day to day, we are excited to see how his righteous advocacy for workers will help build back up the NLRB as a robust defender of the rights of workers.”
Senators Susan Collins of Maine and Lisa Murkowski of Alaska crossed party lines to vote for both nominees; Republican Dan Sullivan of Alaska joined them to confirm Prouty.
Abruzzo, who was confirmed as general counsel a week earlier, quickly surrounded herself with like-minded deputies. They include Jessica Rutter of the American Federation of Teachers, and Peter Sung Ohr, who served as acting general counsel between Robb’s firing and Abruzzo’s arrival.
“It’s a whole new day at the NLRB,” Stephenson said. “We’re not going to win every battle, but at least we know we’ve got a fair shot from a Board and staff who respect what it says right there in Article 1 of the National Labor Relations Act — that it is their duty to encourage, not undermine, the growth of unions and collective bargaining.”
Toward that goal, it was also a busy summer for the first-ever White House Task Force on Worker Organizing and Empowerment.
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| Confirmed after drawn-out Senate debate, Deputy Secretary of Labor Julie Su joined Marty Walsh at the helm of the department in July. |
Biden created the Cabinet-level panel in April, giving members six months to recommend ways that the federal government at large can promote the values set forth in the Act.
Their field research included a June visit to Pittsburgh Local 5 by the chair and co-chair — Harris and Walsh — who held a roundtable discussion with organizers from eight unions, including the IBEW.
AT THE DOL, Walsh finally welcomed his deputy labor secretary in mid-July after a drawn-out Senate debate. Julie Su, previously California’s labor commissioner, was confirmed 50-47 along party lines.
“Julie Su is a fierce leader who will ensure the (DOL) can deliver on its mission and improve the lives of working people across the nation,” AFL-CIO Acting President and Secretary-Treasurer Liz Shuler — a member of Portland, Ore., Local 125 — said in a celebratory tweet.
Su’s former boss, California Gov. Gavin Newsom, called her “a tireless fighter for working Americans and a voice for the voiceless.”
New senior staff at the DOL also includes a veteran official and former acting secretary, Ed Hugler, who was brought back from retirement to accelerate hiring, especially in the enforcement ranks.
But there’s a long way to go, as Walsh testified at a Senate budget hearing in July.
“The Department of Labor is down about 3,000 employees from where it was four years ago,” he told an Appropriations subcommittee. “If we don’t have the staff and we don’t have the employees to protect the workers, then we can’t be on the job sites, we can’t be checking wage-and-hour, we can’t be making sure people are working in safe conditions.”
Laying out his budget requests, he urged senators to help him build on the administration’s American Rescue Plan and the American Jobs Plan.
“As a former construction worker, I know how a good job can change your life,” Walsh said.
“The department’s fiscal year 2022 budget proposes investments in workers and in our country’s future: a future of opportunity and shared prosperity, a future of robust job growth and a thriving middle class, a future where workers nationwide get the skills and training that leads to jobs that pay a fair wage without risking their health or safety.”