Sen. Elizabeth Warren (D-Mass.) on Monday asked NLRB Chairman John Ring to direct board member William Emanuel to recuse himself from a case that could make it harder for workplaces to organize.
In a letter dated Sept. 17, Warren argued that Emanuel should not take part in a challenge to the Obama-era Purple Communications, Inc., which allowed labor unions to use work email addresses when organizing. The board signaledlast month that it will reconsider that decision in a case involving Caesar’s Entertainment Corporation.
Warren — who signed the letter with Sens. Kirsten Gillibrand (D-N.Y.), Cory Booker (D-N.J.), Tammy Baldwin (D-Wis.), and Mazie Hirono (D-Hawaii) — said Emanuel should sit out Caesar’s Entertainment due to a conflict involving his former law firm.
“The fact that Member Emanuel participated in the Notice and Invitation to File Briefs on a matter from which he should be recused is an ominous sign, indicating that the board has not — and moving forward, may not — follow appropriate ethics rules and precedents in this case,” the senators wrote.
The congressional Democrats cited a recent ethics dust-up concerning Hy-Brand Industrial Contractors, a decision that narrowed the circumstances under which franchisers could be held liable for labor violations committed by their franchisees and contractors. After that decision, Emanuel was scolded by the NLRB inspector general for participating even though his former law firm, Littler Mendelson, had been involved in Browning-Ferris Industries, a case whose 2015 decision Hy-Brand overturned. The inspector general found the cases were linked because Littler’s client could benefit from Emanuel’s involvement. The board ultimately vacated Hy-Brand in deference to the IG’s ethics concerns and instead proposed overturning Browning-Ferris in a rule.
Emanuel’s defenders have complained that the inspector general used an unusually strict conflict of interest standard to criticize Emanuel, one that left him open to endless accusations of conflicts and to political attacks. NLRB General Counsel Peter Robb said he disagreed with the inspector general’s reasoning.
“It’s premised on slowing down the decision-making process,” said Roger King, senior labor and employment counsel for the HR Policy Association.
Littler Mendelson, a large management-side firm with thousands of clients, isn’t a party in Caesar’s Entertainment. But the firm was involved in Purple Communications, and the Democratic letter’s signatories said that creates a similar conflict of interest for Emanuel. Purple Communications is pending appeal in the 9th Circuit.
The letter cited President Donald Trump’s 2017 executive order barring members of the administration from participating “in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.”
An NLRB spokesperson declined to comment but said Ring would respond to Warren’s letter.
Per POLITICO, the National Labor Relations Board will propose a joint employer rule on Friday that would reverse the Obama-era Browning-Ferris standard, handing a major win to businesses.
The proposed rule addresses the circumstances under which franchisors can be held liable for labor violations committed by franchisees and contractors. President Donald Trump’s NLRB sought to reverse Browning-Ferris last year, but its efforts were thwarted by ethics conflicts with one of Trump’s appointees, William Emanuel.
In a written statement, the board suggested that the proposal would revert to the pre-Obama standard.
“Under the proposed rule, an employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine,” the board said.
The board’s three Republican members favored the change, while Democrat Lauren McFerran dissented. The fifth seat remains vacant.
The NLRB will centralize decision-making, according to Bloomberg Law, in an effort to reduce the influence of regional directors, whom business groups see as too pro-labor.
In a memo sent to regional directors Monday, Beth Tursell, associate to the general counsel, said the changes would lead to higher quality and speed in decision-making.
“Under a centralized approach, decision-writers can expect to be called upon to draft decisions on short notice, and they will give that work the highest priorities,” she wrote.
The memo said that regional directors will be “expected to delegate” certain decision authorities to their supervisors, allowing supervisors to dismiss, withdraw or settle existing cases. Tursell said the approach was tested successfully in 17 of the 26 regional offices.
The National Labor Relations Board today asked for input on whether it should overturn Purple Communications, Inc., an Obama-era decision that allows employees to use corporate emails for union organizing after hours.
The notice, which asks the public to file briefs on the matter, suggests that the Republican-controlled board likely will reverse the Obama standard, barring organizers from using corporate email. While Purple Communications applied only to emails, the board also asked whether it should review the standard for other employer-controlled resources such as company phone lists.