- A group of Democratic senators want National Labor Relations Board (NLRB) member William Emanuel to recuse himself from an upcoming board decision.
- The senators are relying on an unprecedented ruling by NLRB’s Inspector General in 2015 that forced Emanuel to retroactively remove him from a case on the “joint-employer” standard.
- Emanuel’s recusal would likely hamstring the board’s decision with a partisan 2-2 split and leave an Obama-era ruling in place.
Chairman of the National Labor Relations Board (NLRB), John Ring, told Democratic senators Tuesday that he would not push Republican board member William Emanuel to recuse himself from a decision in an upcoming case that could overturn labor law set under former President Barack Obama.
The current case, Rio All-Suites Hotel, may overturn the NLRB decision issued in the 2014 case of Purple Communications. In 2014, the NLRB found that once employees are granted access to company email accounts, employers cannot prevent employees from using the account to organize a union. (RELATED: A Pro-Union Labor Board Ruling Is An ‘Industry-Wide’ Drag On Hotel Employees Wages, Study Says)
The Purple Communications decision overturned a 2007 NLRB ruling that a corporate email system belongs to the company, so the company can restrict its use to business emails only.
Democratic Sens. Elizabeth Warren of Massachusetts, Kirsten Gillibrand of New York, Mazie Hirono of Hawaii, Tammy Baldwin of Wisconsin and Cory Booker of New Jersey sent a joint-letter to Ring on Sept. 17. The letter urged the NLRB to uphold the standard set in Purple Communications, adding that Emanuel should recuse himself from voting on the case.
“Board member recusals are to be handled by the NLRB’s Designated Agency Ethics Officer (DAEO). Our DAEO has the responsibility of providing the Board with independent and objective advice regarding these matters, and often does so in consultation with the Office of Government Ethics,” Ring wrote in response.
“As I have stated, nothing about recusal decisions should be based on politics — that is, on a desired outcome in a particular case or on the position some may anticipate that a particular Board Member might take in the case,” Ring added.
Emanuel’s recusal would mean the case would be decided by the other board members: two Republicans and two Democrats. A tied vote would leave the precedent set in Purple Communications in place.
The Democrats claim that Emanuel should recuse himself because his former employer, Littler Mendelson, is representing one of the parties involved in Rio All-Suites Hotel.
“Member Emanuel’s participation, in any form, in [Rio All-Suites Hotel] would present a clear conflict of interest and put him in the position of using the power of his office to influence the interests of his former employer-exactly the scenario that federal ethics regulations are designed to avoid,” the senators wrote.
The Democrats’ case rests on a February report by NLRB Inspector General David Berry. Berry found that Emanuel should have recused himself from Hy-Brand, a case that returned the definition of a “joint-employer” – redefined by the board under Obama – to the meaning in place for decades prior to a 2015 decision in the case Browning-Ferris.
Berry’s report found that Emanuel had violated President Donald Trump’s ethics pledge for political appointees by judging a case “involving specific parties that is directly and substantially related to [Emanuel’s] former employer or former clients.”
Although none of the parties involved in the Hy-Brand decision were involved in the Browning-Ferris case, Berry judged that “the Hy-Brand deliberation was a continuation of the Browning-Ferris deliberative proceedings” because both cases covered the same issue – the definition of “joint-employer” – and the NLRB decision in Hy-Brand used reasoning laid out in the dissent written in Browning-Ferris.
Berry’s analysis and findings were unprecedented, Heritage Foundation Center for Legal and Judicial Studies deputy director Thomas Jipping said in an August report.
“Neither Berry nor [DAEO Lori Ketcham] identified any authority, precedent, source, or other support for their wholesale-incorporation-equals-consolidation theory. Why is incorporating wording from a decision (or a dissent) in a different case inappropriate in any manner?” Jipping wrote. “A feature so central to such a significant decision should have some kind of foundation or authority to back it up.”
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