This week, President Biden moved the National Labor Relations Board one step closer towards having a majority of members with pro-union backgrounds. This occurred after Biden nominated his second new member to fill one of the NLRB’s five seats. Biden selected David Prouty, an attorney who has spent his career representing labor unions. If Prouty is confirmed, he will fill the seat that becomes vacant when Republican William Emanuel’s term expires this August.
These moves will accelerate the NLRB’s current shift into a more pro-union direction. Ultimately, there is a good chance that the Democratic-majority NLRB will revisit Trump-era decisions on matters such as the joint employer standard, the scope of what constitutes “protected concerted activity” including employees’ ability to use employers’ email systems to engage in union activities, and possibly NLRB election procedures. This is particularly likely if the Pro Act does not become law. Each of these issues will have large impact on the rights and obligations of both unionized and non-union employers.