William Emanuel testifies at his confirmation hearing in July. Credit: Diego M. Radzinschi/ NLJ

An attorney for William Emanuel argues that the Trump-appointed National Labor Relations Board member did not violate the White House ethics pledge when he voted last year to undo an Obama-era employment rule that his former law firm Littler Mendelson was trying to scrap.

But the NLRB inspector general said in a new report that Emanuel's vote in the case, Hy-Brand Industrial Contractors, violated an executive order that prohibits appointees from participating in certain matters tied to previous employment for two years after confirmation.

Emanuel, a former shareholder in Littler's Los Angeles office, had been a board member for 20 days before beginning his participation in the Hy-Brand case. An earlier inspector general's report said Emanuel should not have voted in the Hy-Brand matter because Littler represented a party in a related dispute at the board that also confronted the scope of “joint employment” liability.

The NLRB's Republican majority, including Emanuel, used the Hy-Brand case to overturn an Obama-era ruling—in Browning-Ferris Industries—that expanded the scope of liability for franchisors and contractors for labor violations. Emanuel's conflict forced the board to erase its ruling, keeping in place—for now—the broader Obama-era standard.

David Berry, the NLRB inspector general, said an investigation substantiated that Emanuel violated the presidential ethics pledge. But Berry's report did not substantiate allegations that Emanuel provided false information either to Congress or to the inspector general's office. Berry reported that Emanuel showed a “genuine lack of recall” that Littler had represented a client in the Browning-Ferris joint-employment case at the board.

Dwight Bostwick

Emanuel's attorney, Zuckerman Spaeder chairman Dwight Bostwick in Washington, said in a March 22 letter to Berry that “we see no legal or factual basis” supporting the conclusion that Emanuel violated the presidential ethics pledge.

“There is a critical difference between cases that involve the same parties and those that involve the same issues. For the purpose of the presidential pledge, the former requires recusal and the latter does not,” Bostwick wrote.

Bostwick said Berry's finding against Emanuel “has the potential to bedevil and frustrate this agency for years to come. Undoubtedly, this decision will be used to 'weaponize' the ethics rules for the purpose of improperly excluding presidential appointees from doing their jobs they were sworn to do.”

He continued: “The implications for the NLRB's ethics office and the recusal process are dramatic.” Bostwick said the NLRB's ethics office “will now need to review all potential issue preclusion conflicts before, during and after each NLRB decision. The question will no longer be the simple one now asked at the outset of a case: 'Did the member or his/her former employer previously represent one of these parties before the NLRB?'”

Bostwick said Emanuel, to the best of his recollection, “was not aware, while working at Littler, that his firm represented any party in” the Browning-Ferris Industries dispute at the board.

“With so many attorneys working at Littler across so many geographical offices, no single attorney is aware of more than a fraction of that firm's representations,” Bostwick wrote in his letter to Berry on Thursday.

Bostwick also questioned why nobody at the NLRB ethics office questioned Emanuel's participation in the Hy-Brand case at the time of the deliberations last year.

“Not a single person at the NLRB thought Member Emanuel's recusal was required—and for good reason,” Bostwick wrote. The presidential ethics pledge, he continued, would have required Emanuel to sit on the sides only if he or his firm had represented a party in the case in front of him.

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Bostwick asked the NLRB to solicit the views of the White House counsel's office “in light of their interest in matters impacting presidential appointees.”

Democratic U.S. Rep. Bobby Scott of Virginia called for a panel to investigate Emanuel and the swirling claims of an ethics violation. Democratic members of the Senate Health, Education, Labor and Pensions Committee have spotlighted these ethical issues regarding Emanuel.

Trump's latest nominee to the labor board, John Ring of Morgan, Lewis & Bockius, vowed at his confirmation hearing this month not to “repeat” the ethics conflict dogging Emanuel.

“I do not want to be in the position Member Emanuel finds himself in and I don't want to put a cloud over the NLRB,” Ring said at his hearing.

 

Read more:

Inside a Morgan Lewis Partner's New Conflicts Disclosures for NLRB Post

Facing Ethics Scrutiny, NLRB Strikes Vote That Overruled Obama-Era Decision

Trump NLRB Pick Vows Not to 'Repeat' Ethics Conflict Dogging Another Member

John Ring of Morgan Lewis, Trump Pick for NLRB, Reveals $2.7M Partner Share

Littler Mendelson's William Emanuel, Trump Pick for NLRB, Discloses Clients