Former Ethics Czar to NLRB: Tell McDonald’s to Take That Back (1)

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By Hassan A. Kanu

A former ethics chief in George W. Bush’s White House has asked the National Labor Relations Board to mediate a testy disagreement between him and attorneys representing McDonald’s in a major joint employer case.

Richard Painter want the board to reprimand McDonald’s attorneys for what he called an unprofessional response to a letter he sent to the NLRB on an ethics question in the case. Fight for $15 attorneys backed up the former ethics chief with a formal motion Oct. 19, asking the board to nix the company’s response or the “offending portions” from the case records.

The heated, continuing exchange reveals the politics underlying the labor dispute, which centers on whether McDonald’s Corp. should share responsibility for alleged labor law violations with its franchise owners.

Willis Goldsmith, one of McDonald’s attorneys, recently filed an answer to Painter’s argument that two Republican board members have a conflict of interest in the case. Goldsmith noted Painter’s “anti-Trump” political aspirations and suggested the former ethics chief only intervened in the case to boost his public profile.

Unions affiliated with the Fight for $15 protest—a movement for higher wages and collective bargaining rights—have asked NLRB Chairman John Ring and Member William Emanuel to recuse themselves from the case because they came from law firms that helped McDonald’s counter Fight for $15’s campaign. Federal regulations and a White House ethics pledge lays out the conflict-of-interest rules for presidential appointees.

“The first page of McDonald’s letter contains personal attacks and irrelevant and inaccurate information about me,” Painter wrote Oct. 17 in his latest response to Goldsmith. “This not only reflects poorly on McDonalds’s counsel, but very poorly on the Board if the Board does not take the minimal corrective action of ordering McDonald’s counsel to redraft its submission” so it addresses only the merits of my letter, Painter said.

Goldsmith in the first sentence of his letter called Painter a “recently failed Democratic Senate candidate” and goes on to tell the board’s members that they should consider Painter’s career as a “cable news talking head” when weighing his arguments. Painter often makes cable news appearances commenting on issues of ethics in the Trump administration.

“In his letter, Painter identifies himself as a law professor and ‘former Associate White House Counsel and chief ethics officer for President (George W) Bush,’” Peter Schaumber, a chairman and member of the NLRB during the Bush administration, told Bloomberg Law in an email. It wasn’t inappropriate “under these circumstances” to respond by pointing out that Painter is trying to launch a political career as a Democrat and isn’t just “a Republican taking an anti-Republican position,” Schaumber said.

That said, “I would not have come out of the box in the first sentence of the text as aggressively” as Goldsmith “did to avoid surface claims of unprofessional conduct,” he said.

Painter and Goldsmith didn’t immediately respond to requests for comment.

Same Case?

Painter said in his letter that it’s “extremely likely” that Ring and Emanuel made money when their former firms conducted training sessions and established national hotlines to help McDonald’s managers respond to Fight for $15 protest actions. He said state rules of professional conduct for attorneys—in addition to the White House ethics pledge—would bar the members from participating in a case under these circumstances.

Ring was a partner at Morgan Lewis, and Emanuel was a shareholder at Littler Mendelson.

“Despite the efforts of McDonald’s counsel to dice and slice this particular party matter into different matters—one a client counseling matter and the other a litigation matter—McDonald’s cannot avoid the obvious fact that the advice and the litigation before the NLRB are about the same dispute between the same parties and involve application of the same law,” Painter wrote. That’s “directly contrary to the text of the rule” in the White House ethics pledge.

Schaumber told Bloomberg Law that Painter’s analysis is “less the product of balanced legal thought than it is a skewed analysis to win Big Labor’s support for his next run for political office.”

The former ethics czar said in his latest letter that Goldsmith’s points about his personal and political life constitute “improper advocacy,” suggesting that he violated attorneys’ rules of professional conduct. Fight for $15 agreed.

“The mere suggestion that NLRB Members could consider litigants’ or their counsels’ political activities” would “inherently discredit the board as an independent tribunal charged with impartial administration of federal law,” Fight for $15 attorneys said in their filing.

The NLRB doesn’t comment on active cases. The agency has said it will follow the guidance of its internal ethics official and “not the opinions of others.”

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