In December, the National Labor Relations Board held vote to bring joint employer case back to Board, one day before Republican NLRB chair’s term expired
Despite former law firm’s role in case, NLRB member William Emanuel participated in vote
Emanuel gave conflicting answers to Congress on his participation
Democrats: “This action appears to be in direct contravention of your commitments to the Office of Government Ethics, to the requirements of the Ethics Pledge, and to the requirements of federal regulations”
Washington, D.C. – U.S. Senators Patty Murray (D-WA), Elizabeth Warren (D-MA), and Maggie Hassan (D-NH), and Representatives Bobby Scott (D-VA), Gregorio Kilili Camacho Sablan (D-MP), and Donald Norcross (D-NJ) sent a letter asking National Labor Relations Board (NLRB) member William Emanuel to clarify whether he violated federal regulations and the Trump Administration ethics pledge by participating in an eleventh-hour decision involving the “joint employer” standard. In a December vote, the NLRB weakened workers’ right to collectively bargain and shielded large corporate employers from liability. Member Emanuel participated in the vote to overturn the joint employer standard and in a separate vote to bring the joint employer case back to the Board, despite the fact that his former law firm represents one of the employers in the case.
“By participating in the Board’s action to bring [the Browning Ferris case] back to the Board, you are likely in violation of both federal regulations and the Administration’s Ethics pledge,” wrote the Members of Congress.
Both the Trump administration ethics pledge and federal regulations prohibit employees from participating in matters involving former employers. In a response to a Congressional inquiry of Emanuel’s actions, Emanuel claimed he was unaware his former law firm represented a party in the case that established the joint employer standard, Browning Ferris Industries (BFI)—despite this case being widely known as one of the most consequential labor cases of the past decade. This claim is also in direct contradiction of Emanuel’s written responses to Senator Murray’s questions during his confirmation process, where he listed BFI as a client of his law firm.
In addition to his direct involvement in the BFI remand case, Emanuel voted to overturn BFI in the Hy-Brand Industrial Contractors case. These decisions were rushed out of the Board days before the NLRB Chair’s term expired late in December.
The full text of the letter is below and the PDF can be found HERE.
Emanuel’s responses to Senator Murray’s questions for the record, referenced in the letter below, can be found HERE.
February 5, 2018
Hon. William Emanuel
National Labor Relations Board
1015 Half Street, S.E.
Washington, D.C. 20570
Dear Member Emanuel:
We write to follow-up on your January 26, 2018 response to our December 21, 2017 letter regarding your participation in a series of National Labor Relations Board (“the Board”) actions, including the vote to remand the Browning Ferris Industries (“BFI”) case. These actions include a December 14, 2017 Board decision in Hy-Brand Industrial Contractors, 365 NLRB No. 156 (2017) (“Hy-Brand”), overturning the Board’s previous decision regarding its joint employer standard in BFI. On December 15, 2017, the Board directed the General Counsel to request the United States Court of Appeals for the D.C. Circuit to remand BFI back to the Board for reconsideration. For reasons that have yet to be explained, the Board voted unanimously to rescind that direction on December 19. Nonetheless, the General Counsel filed the remand motion later that day. By participating in the Board’s action to bring BFI back to the Board, you are likely in violation of both federal regulations and the Administration’s Ethics pledge.
Prior to your tenure on the Board, you were a senior partner in the labor and employment practice at Littler Mendelson, P.C. (Littler) for 13 years. Littler represents a party to the BFI matter, Leadpoint Industries. As you know, Executive Order 13770 (the “Ethics Pledge”) prohibits Executive Branch employees from “participat[ing] in any particular matter involving specific parties that is directly and substantially related to [a] former employer . . .” Exec. Order. No. 13770(1). A matter is “directly and substantially related” to a former employer if the former employer represents a party in the matter. Exec. Order. No. 13770(2)(d).
Additionally, federal regulations require employees to “endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part.” 5 C.F.R. § 2635.101(b)(14). Executive branch employees “should not participate” in a matter when “the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter.” 5 C.F.R. § 2635.502(a). That is why in your signed ethics agreement with the Office of Government Ethics you state that “[f]or a period of one year after [your] resignation [from Littler], [you] will not participate personally and substantially in any particular matter involving specific parties in which [you] know the firm is a party or represents a party . . . .”
Accordingly, you should not have participated in any case where Littler represents a party. However, in your January 26 letter to Members of Congress, you stated that you participated in directing the General Counsel to ask the Court to remand BFI back to the Board for reconsideration consistent with precedent set out in the Hy-Brand decision and more favorable to Littler’s client. The court granted the remand request, which benefits the interests of your former firm and its client. This action appears to be in direct contravention of your commitments to the Office of Government Ethics, to the requirements of the Ethics Pledge, and to the requirements of federal regulations.
In your letter, you attempt to explain your actions by saying that you did not know that Littler represented a party in the BFI case. We would like to remind you that at the time of your confirmation in July 2017, you did in fact know that Littler represented a party in the BFI matter. Following your confirmation hearing, on July 14, 1017, we sent you a series of written questions. Senator Murray’s Question 18 specifically asked that you provide a list of all cases decided by the Board and that are currently on appeal in which Littler Mendelson represents a party. In response you produced a list of cases. BFI is clearly indicated on that list. (Attachment A). As a result, it would appear that you did in fact know that Littler was a party to BFI, and that your action in joining the request for remand violates both the Ethics Pledge and the federal regulations.
During your confirmation process, you further committed to Senator Murray in writing that in addition to signing the ethics pledge, you would “request advice regarding recusal issues from the Board’s ethics office.” However, you have now acknowledged that you had not received any guidance from the ethics office regarding you recusal obligations in BFI or other cases.
In order to more fully understand the circumstances surrounding your apparent violation of the pledge and the ethics regulations please provide the following by February 16, 2018:
If you have any questions about this request, please contact John_DElia@help.senate.gov, Carly_Rush@help.senate.gov, Kyle.deCant@mail.house.gov, and Lindsay_Owens@warren.senate.gov. We look forward to hearing from you.
 Littler has publicly acknowledged this representation. See, e.g., Michael Lotito, Maury Baskin, and Missy Parry, NLRB Imposes New “Indirect Control” Joint Employer Standard in Browning Ferris, Littler Mendelson, P.C., Aug. 28, 2015, at page 1, n.2 available at https://www.littler.com/files/2015_8_insight_nlrb_imposes_new_.pdf.