Democrats Call for Republican NLRB Member Emanuel’s Resignation

By Allen Smith, J.D. Mar 29, 2018
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​Democrats are calling for Republican National Labor Relations Board (NLRB) member William Emanuel to resign following NLRB Inspector General David Berry's finding that Emanuel violated conflict-of-interest rules last December by participating in a case that was indirectly linked to his former law firm. The decision—Hy-Brand—narrowed the definition of who is a "joint employer," making it harder for unions to organize and file complaints against joint employers. On March 23, Sen. Elizabeth Warren, D-Mass., and Rep. Keith Ellison, D-Minn., said that Emanuel should step down.

"Now that the inspector general has determined Emanuel violated the president's ethics pledge when he refused to recuse himself in the Hy-Brand case, he should resign immediately," Ellison stated in a release. The NLRB has vacated Hy-Brand because of the inspector general's findings. "President Trump should swiftly name a nominee whose track record aligns with NLRB's commitment to protect the rights of workers who are fighting for better wages and safer workplaces, rather than the interests of corporations and their bottom lines," Ellison added.

We've rounded up the latest news on Emanuel. Here are SHRM Online resources and news articles from other trusted media outlets.

Hy-Brand Was 'Do Over' for Browning-Ferris

Emanuel's former law firm was not involved in the NLRB's Hy-Brand case but instead litigated for one of the parties in Browning-Ferris, the decision that Hy-Brand overturned to make it more difficult to be a joint employer. "Although the two cases started out as two distinct and separate matters, the manner in which the former [NLRB] chairman marshalled Hy-Brand through the board's deliberative process effectively resulted in a consolidation of the two matters," the inspector general has said in a memo. "In short, the practical effect of the Hy-Brand deliberative process was a 'do over' for the Browning-Ferris parties" and Emanuel therefore should not have helped decide the case. In the short-lived Hy-Brand decision, the NLRB returned to a test requiring one entity to have direct control over another to be joint employers. Browning-Ferris required only indirect control.

(Bloomberg)

Emanuel Defends Himself

Emanuel, who has hired a lawyer in the matter, has strenuously disputed the inspector general's interpretation, noting that Hy-Brand and Browning-Ferris were two entirely different cases. "The fact that a new majority opinion uses language from the dissent of a prior case is not uncommon and does not make the two cases the same matter," according to Emanuel, concluding that to say otherwise would make NLRB decision-making "completely unworkable."

(Washington Examiner)

No Objections Raised with Former Democrat NLRB Member

Gregory Angelo, president of Log Cabin Republicans, has said the standard that Berry applied to Emanuel wasn't used with former NLRB member Craig Becker, who made his career representing unions. Becker declined to recuse himself from labor cases that involved his former clients. Angelo quoted The Wall Street Journal as observing that the "Berry standard seems to be that board members from business are conflicted at the NLRB but those who worked for unions aren't."

(The Hill)

Congressman Calls for More of an Investigation

But Rep. Bobby Scott, D-Va., ranking Democrat on the House Committee on Education and the Workforce, called for further investigation. "The inspector general's investigation confirms that member William Emanuel violated his ethics pledge by participating in a case where he had a conflict of interest," Scott said. "In doing so, member Emanuel has undermined the public's confidence in the board's ability to protect workers' rights in an impartial manner."

(Washington Examiner)

 

[SHRM members-only HR Q&A: What is the function of the NLRA?]

Call to Investigate Another NLRB Member

Meanwhile, the conservative Competitive Enterprise Institute on March 28 urged the inspector general to investigate NLRB member Mark Gaston Pearce for leaking at an American Bar Association event in Puerto Rico that the NLRB would vacate Hy-Brand the day before it abandoned the decision. "There appears to be a troublesome double-standard at the NLRB. The NLRB inspector general has shown zeal for investigating Republican NLRB members but not Democratic members," said Trey Kovacs, the group's labor policy expert.

(Washington Examiner)

Teamsters Originally Challenged Emanuel's Participation

In a Jan. 4 motion to the U.S. Circuit Court of Appeals for the District of Columbia, the Teamsters originally challenged the Hy-Brand decision and raised the conflict-of-interest concern, stating that a sensible person would conclude that Emanuel's objectivity was compromised in the case, even though his old firm did not represent anyone in it—just in Browning-Ferris.

(SHRM Online)

 

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