Democrats Want Trump Labor Board Member’s Recusal on Union Email Rule

By | September 19, 2018

Democratic U.S. senators led by Elizabeth Warren of Massachusetts urged a Trump administration labor board appointee to recuse himself from a case that could end up being a big victory for corporations trying to make it harder for workers to unionize.

The case before the National Labor Relations Board deals with the right of companies to restrict workers’ online organizing efforts. In a letter sent to NLRB Chairman John Ring, a Trump appointee, Senators Kirsten Gillibrand of New York, Cory Booker of New Jersey, Mazie Hirono of Hawaii, and Tammy Baldwin of Wisconsin joined Warren in demanding the recusal of NLRB member William Emanuel.

The NLRB invited input last month on whether it should use the case, Caesars Entertainment Corp., to reverse an Obama-era precedent in which employees at a company called Purple Communications won the right to use work email to organize. Emanuel had previously worked as an employment law attorney at Littler Mendelson PC. While the management-side law firm isn’t directly involved in the Caesars case, it does represent Purple, which appealed its 2014 defeat to a federal court, where it’s pending.

“Thus, member Emanuel’s participation, in any form, in Caesars Entertainment Corp. 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 in their Monday letter to Ring.

An NLRB spokesperson said Ring would respond to the letters, and declined further comment. Management-side advocates have argued that Democrats are applying a double standard on ethics issues in an effort to derail the agency’s ability to pursue pro-business precedents.

The letter “is a continuation of the long-game to attempt to prevent the board from having an operating Republican majority,” said Roger King, a management-side attorney for the HR Policy Association.

The Democratic senators contend the email case echoes an earlier controversy, one in which Emanuel joined the majority in a 3-2 party line vote to reverse another Obama-era precedent, the so-called joint employer rule. In that case, the Republican majority voted to make it harder for companies to be held legally responsible for alleged mistreatment of workers ostensibly employed by their contractors or franchisees. After the NLRB’s inspector general concluded that Emanuel shouldn’t have participated because Littler Mendelson represented a party in the Obama-era case that established the rule, the other members of the NLRB voted to throw the new decision out. That left the Obama-era rule in place.

The NLRB is now moving to undo that precedent through its regulatory process, issuing a proposed rule last week.

Democrats have also urged NLRB member recusals from a pending decision in the “Fight for $15” movement’s conflict with McDonald’s Corp. They argued that Emanuel and Ring shouldn’t participate because their former law firms were brought in by the fast-food company to advise franchisees on how to respond to the union-backed campaign.

In August, Ring wrote that he found it “distressing” that Democratic Senate staff had contacted his agency’s inspector general about that issue, rather than go through the NLRB’s congressional affairs office. The top Republican and Democratic members of the Senate’s Committee on Health, Education, Labor and Pensions issued a bipartisan response, defending staffer communications with the inspector general as “common practice.”

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