Ethics Cloud Forms Early in Labor Board Member Emanuel’s Term

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By Hassan A. Kanu

A reported ethics investigation and an ongoing probe by a group of Democratic senators is casting a pall over the first year of labor board member William Emanuel’s (R) tenure.

Sens. Elizabeth Warren (D-Mass.) and Patty Murray (D-Wash.) said in a Feb. 5 letter that Emanuel, a former management lawyer appointed by President Donald Trump and confirmed by the Senate in September, participated in a recent case in which his old firm had an interest, according to a copy obtained by Bloomberg Law. That move is “in direct contravention” of Emanuel’s “commitments to the Office of Government Ethics” and the White House and violates federal regulations, the lawmakers said.

The letter is the latest sign that ethics and conflicts questions are threatening to dog Emanuel at least through his first year on the National Labor Relations Board. The NLRB’s inspector general has also launched an investigation into Emanuel’s involvement in the Hy-Brand decision, according to a recent ProPublica report. The board in that case limited its standard for joint employer liability among affiliated businesses, a decision cheered by the employer and business community.

Emanuel was a management-side senior partner and shareholder at Littler Mendelson before his appointment to the board. The law firm houses what may be the country’s largest employment law shop and also has an accompanying lobbying arm.

Littler Mendelson represented one of the businesses involved in the Browning-Ferris Industries case. Democrats held the majority when the board in Browning-Ferris adopted a significantly broader interpretation of joint employment liability, a lightning rod decision for business groups. The NLRB walked back that decision in Hy-Brand, shortly after Republicans took control of the board.

Emanuel participated in that reversal, then joined a request asking a federal court in Washington, D.C., to send the BFI lawsuit back to the board because it had changed the law. That decision “benefits the interests of your former firm and its client” and violates federal regulations, Warren and Murray wrote.

Emanuel’s supporters have said calls for him to sit out any cases involving the joint employer issue go well beyond what has traditionally been expected of board members, who usually come with experience representing employers or workers in labor cases. The lawmakers’ and inspector general inquiries, however, focus on Emanuel’s direct participation in the Browning-Ferris case.

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