NLRB Appointee William Emanuel has recused
himself from ruling on disputes involving his former law firm’s clients
then used unrelated cases as vehicles to help Republican colleagues
the same thing.
Ian MacDougall, ProPublica
D.C.) -- A Trump administration
appointee to the National Labor Relations
Board benefited the interests and clients of his former law firm when
the deciding vote to undo rules protecting workers’ rights in two cases
decisions, which were both resolved 3-to-2, are instances of what some
NLRB members describe as a side-door means of evading government ethics
requirements — a way to do indirectly what conflict of interest rules
the appointee from doing directly.
Emanuel, who joined the NLRB in September, has
recused himself from involvement in more than four dozen cases
the firm he left to join the labor board.
firm, Littler Mendelson, is known for representing corporations in
disputes. Littler was not representing any parties in the disputes that
helped resolve in December.
law firm had argued, in public filings, for the elimination of
three cases pending before the NLRB. All three involved a widely
issue in the labor world and a legal position that Littler was known to
espouse. Emanuel recused himself from all three cases.
he took unusual steps that benefited Littler’s clients indirectly.
How Littler was
able to do what he
understand how Emanuel accomplished that, a brief primer on the NLRB is
necessary: The board often functions like a court, with its five
currently three Republicans and two Democrats — adjudicating labor
between companies and their workers. Legal bodies like the NLRB
resolve only those issues argued by the parties involved in the dispute.
unusual is that, in the two instances last month, Emanuel and his two
Republican members raised precedents that had not been at issue in the
they were voting on. No party had asked the NLRB to overrule the
and the board never asked the parties or the public to address the
moves raised hackles among Democratic NLRB members. One of the latter,
McFerran, accused the Republican majority of overruling precedent
its own initiative,” a move she called “suspect.”
former NLRB members criticized Emanuel. “It looks bad,” said Wilma
Democratic board member in the Clinton, George W. Bush and Obama
administrations. “It looks like a rush to judgment, and the absence of
deliberative process, and a purely results-driven process — and
Obama NLRB member Sharon Block agreed. “Deciding a case in a way the
didn’t ask you to decide it seems to me inevitably to raise the
are you doing this?” said Block, who now heads the Labor and Worklife
at Harvard Law School. “Emanuel having clients that actually had made
request — at the very least that creates a huge appearance problem.”
Babson, a former Democratic board member who now represents companies
matters, defended Emanuel. Even when a legal issue arises in a case
NLRB member has a conflict, he said, “you’re not precluded from
similar issue in another case that you’re not recused from.” Otherwise,
observed, there would be an unworkable number of recusals: Too many
board members — typically prominent labor lawyers for unions or
would be recused from too many cases involving hot-button labor law
No Comment On
referred questions to an agency spokesperson, who declined to comment.
Littler spokesperson did not respond to a request for comment.
cases in which Emanuel’s vote helped his old law firm eradicated
precedents governing workplace rules and company responsibility for
violations of its franchise holders and contractors. The consequences
expected to be — and in some cases already are — far-reaching.
December rulings were part of a rush of decisions in the week before
the end of
Chairman Philip Miscimarra’s tenure on the labor board, and
Littler objected to had long been in Miscimarra’s crosshairs, too.
until Emanuel joined the NLRB, Miscimarra didn’t have enough votes to
The Ethics Issue
most executive branch officials, Emanuel signed an ethics pledge upon
office. The pledge includes
conflict of interest rules, which preclude participating in
cases where a
former client or employer is a party or represents one.
Emanuel has recused himself from cases in which his old law firm
company in a labor dispute with an employee or union, he explained in
response to questions from Sen. Elizabeth Warren, D-Mass.
why, on the face of it, Emanuel’s participation in the December cases
implicate conflict of interest rules; Littler wasn’t involved in them.
Benefitted From 'Side
a close look at them shows how Emanuel’s votes helped his old firm’s
one case involving the
aircraft manufacturer Boeing, Emanuel voted to make it harder
to show that ostensibly neutral workplace rules interfere in practice
their right to organize.
decision overturned a 13-year-old precedent, one that none of the
attempted to end.
Littler attorneys, on behalf of clients such as Uber — in cases in
Emanuel is not participating — had asked the board to do precisely
Reverse the precise workplace-rule precedent at issue.
clients in several other pending cases in which Emanuel cannot
stand to benefit from the NLRB’s Boeing decision.
has made its positions known elsewhere, too, including in federal
courts, which can review board decisions. In one such case Littler
asked an appeals court to reject the Obama NLRB’s so-called
rule, which made it easier for workers to hold a parent company liable
unfair labor practices of its franchisees and other companies with
which it has
and his fellow Republican board members overruled the Obama
second case they decided
in December, though no party had asked them to do so.
say Emanuel and the Republican majority have also taken other shortcuts
overturning NLRB precedents — five in December alone, including the
— such as reaching a decision before all the normal procedural steps
the ethics of Emanuel’s participation are ambiguous, former members
part because similarly close calls simply didn’t arise during their
“Those fine points of recusal policy didn’t come up, because nobody got
close,” said Block. “I don’t remember there being any hard questions,
we just drew a bright line.”
MacDougall is a senior reporting fellow at ProPublica.
report originally ran at ProPublica and is reprinted here
with permission. ProPublica is a non-profit news platform that produces
investigative journalism in the public interest.
was a recipient of the 2017 Pulitzer Prize for public service, the 2016
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Labor laws, worker rights, unions, Trump administration, NLRB, William
Emanuel, Littler Mendelson law firm, ethics, conflict of interest