Warren criticizes Emanuel over alleged conflict

  • September 17, 2018

Warren criticizes Emanuel over alleged conflict

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 CommunicationsInc., 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 Contractorsa 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 Industriesa 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.