Deja Vu: An Ex-SEIU Attorney & Current NLRB Member Refuses To Recuse From A SEIU Case
More than a decade later, the Craig Becker Standard for Recusal Refusal is back.
On Wednesday, the National Labor Relations Board (NLRB) rejected a motion made last year by McDonald’s Corporation to have a NLRB member recuse himself on a case involving his former employer, the Service Employees International Union (SEIU).
Although the original motion involved two NLRB members, Gwynne Wilcox and David Prouty—both of whom were employed by and represented SEIU subordinate organizations prior to joining the NLRB—Wilcox did not participate in the case, so Wednesday’s ruling only involved Prouty.
NLRB Members & SEIU’s Fight For $15
In late 2009, following the election of President Barack Obama and with the expectation of card-check legislation being passed, the SEIU drafted a blueprint to unionize the fast-food industry by wrapping it within a “living wage” campaign.
That blueprint was the genesis of what later became the Fight for $15 and a Union campaign, which officially launched in 2012 with a strike in New York City.
From the years 2012 through 2017, the SEIU “poured millions of dollars—at least $70 million, which is a conservative estimate” into the campaign, the U.S. Chamber of Commerce wrote in 2018.
Potential Conflicts of Interest. Prior to her appointment to the NLRB, Gwynne Wilcox was a union-side attorney who served as Associate General Counsel of 1199SEIU United Healthcare Workers East, a large SEIU subordinate based in New York.
However, Wilcox’s legal services presented a potential conflict of interest at the NLRB, as the attorneys at Littler Mendelson wrote before her 2021 appointment:
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. [Emphasis added.]
In the end, even though Wilcox did not participate in the McDonald’s case, Prouty did.
Like Wilcox, David Prouty was employed as General Counsel by a subordinate body to the SEIU, Local 32BJ
In its motion filed last year, McDonald’s Corp, argued that the NLRB members:
“…recusal is required because Member Wilcox recently served as NFFWU’s attorney and because Member Prouty recently served as general counsel of SEIU Local 32BJ (“Local 32BJ”), which has long worked directly with and supported financially NFFWU and Fight for $15 to advance their legal and policy aims. Because of these direct—and undeniable— prior affiliations, ‘a reasonable person with knowledge of the relevant facts’ would ‘question’ Member Wilcox’s and Member Prouty’s ‘impartiality’ in this case. 5 C.F.R. § 2635.502(a).” [Emphasis added.]
Additionally, McDonalds Corp argued:
Recusal is also warranted under Executive Order 13989 (the “Biden Ethics Pledge”), which requires executive branch appointees to recuse themselves from matters that are directly and substantially related to a former employer or former clients. The National Labor Relations Act “is not intended to serve either party’s individual interest, but to foster in a neutral manner a system in which the conflict between these interests may be resolved.” First Nat’l Maint. Corp. v. NLRB, 452 U.S. 666, 680-681 (1981). Members Wilcox and Prouty cannot resolve the parties’ conflicting interests “in a neutral manner,” since they have conflicts of interest, both real and perceived….
….Member Prouty’s recusal is likewise required under the pledge. As noted, he recently served as General Counsel to SEIU Local 32BJ, which has publicly held itself out as working arm-in-arm and supporting financially the NFFWU’s Fight for $15 campaign. While serving in this capacity, Member Prouty submitted lengthy comments opposing the joint employer rules applicable to this matter.
On Wednesday, the NLRB rejected McDonald’s Corp’s arguments, stating, in part:
“Member Prouty has considered the motion and has determined, in consultation with the Board’s Designated Agency Ethics Official, not to recuse himself.”
Another ‘Recusal Refusal.’
As has happened before, when another SEIU lawyer, Craig Becker, was appointed to the NLRB, Wednesday’s decision rests on a novel argument that different subordinate bodies of the same national union are separate and unique. Therefore, there is no commonality between them.
“In true lawyerly fashion, Mr. Becker is now running for the loopholes, arguing that the SEIU proper is a ‘distinct legal entity’ that is different from local SEIU unions,” the Wall Street Journal reported back in 2010.
That same argument is being used more than a decade later.
“SEIU Local 32BJ is not a party or the representative of a party to this case, and no former client of Member Prouty is or represents a party to this case,” the NLRB stated in its decision on Wednesday.
Oddly, the NLRB did not view alleged conflicts of interests the same way just a few years ago.
Joint Employers Accusing Joint Employers?
Ironically, the basis of the arguments stem from an unfair labor practice case in which the several SEIU entities, as charging parties, alleged that McDonald’s Corporation and SJT Holdings, Inc. (a franchisee) are “joint employers.”
The Charging Parties listed on the original unfair labor practice charge are: 1) SEIU Healthcare Michigan; 2) SEIU National Fast Food Workers Union; 3) The Fight for 15.
Apparently, the “joint employer doctrine” only applies to employers and not unions?
Read the whole NLRB decision here.
Related:
“The 175,000 members of 32BJ SEIU are proud to have fought alongside fast food workers to win historic just cause protections that will help turn fast food jobs into good jobs with stable hours.” — 32BJ SEIU President Kyle Bragg, 2021
“Monday, 32BJ joined fast food workers at City Hall to deliver 3,000 messages to the New York City Council calling on council members to pass a law enabling industry workers to fund their own nonprofit organization with paycheck deductions.” — New York Amsterdam News, 2018