The National Labor Relations Board (NLRB) vacated a ruling Monday after an Inspector General (IG) memo called for William Emanuel to recuse himself over a conflict of interest in the case, The National Law Review reported.
President Donald Trump appointed Emanuel to the NLRB in September, creating the board’s first Republican majority in a decade. The NLRB has since rolled back a number of former President Barack Obama-era rulings, one of the most important coming in a December case “Hy-Brand Industrial Contractors.”
In the Hy-Brand case, the NLRB reinstated a decades-long precedent that parent companies are not liable for labor violations committed by franchisees or subcontractors. The IG called for Emanuel’s recusal in the case Feb. 9, The National Law Review reported.
The justification for the Hy-Brand decision was pulled largely from the dissenting argument in “Browning-Ferris Industries of California,” which the Hy-Brand decision overturned. Borrowing the line of reasoning “consolidated the two cases into the same,” IG David Berry said in a memo.
After conflating the two cases, Berry said Emanuel’s vote in the Hy-Brand decision was a conflict of interest. The law firm Emanuel was working for at the time had filed a legal brief in the Browning-Ferris case that argued against the Obama-era board’s eventual decision. Therefore, in Hy-Brand, Emanuel was effectively re-deciding a case his law firm was a party to and had an interest in.
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Former NLRB general counsel Jerry Hunter criticized Berry’s memo as “unworkable.” Traditionally, board members recuse themselves from a case only if they have represented a client in the case. Berry’s analysis, though, punishes Emanuel for his employer taking a stance on an issue.
“There’s no way you can say that because a board member represented a client dealing with an issue that board member is forever foreclosed from deciding on that issue,” Hunter told the Washington Free Beacon. “If you limited the pool of [board members] based on if they had ever taken a stand on labor issues as an attorney, you’d have to appoint people with no experience in labor law.”
“[Berry’s memo] is totally one-sided,” Hunter added. “The Democrats are crying wolf over something they never raised as an issue when it comes to former union lawyers issuing decisions.”
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