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Attorneys for McDonald’s recently fired off a strongly worded missive against a former Bush White House ethics chief who said two GOP members of the National Labor Relations Board should sit out a case against the fast food giant.
The company’s lawyers describe Richard Painter as a “recently failed Democratic Senate candidate” in their Oct. 9 letter, aimed at convincing the pair of Trump appointees to stay on the case. They ask the NLRB to consider Painter’s career as a “cable news talking head” and his “anti-Trump platform” during an unsuccessful bid for a Senate seat, including calls for the 45th president’s impeachment.
Union-backed Fight for $15’s case alleges McDonald’s franchise owners retaliated against workers protesting for higher pay and that McDonald’s LLC should share responsibility as a “joint employer.” Painter, Fight for $15 attorneys, and high-profile Democrats such as Sen. Elizabeth Warren (D-Mass.) say NLRB Chairman John Ring and Member William Emanuel should sit out the case. That’s because they came to the board from law firms that have helped McDonald’s counter Fight for $15’s advocacy campaigns for McDonald’s workers.
There would be one Republican and one Democrat available to hear the case if Ring and Emanuel recuse themselves.
The unusually heated back-and-forth—including the references to Painter’s “anti-Trump” positions—provide a rare glimpse at the political and ideological divisions that underlie the federal labor board’s operations. The board adjudicates cases and is supposed to operate like a neutral “referee,” but it’s an open secret among employment lawyers that case decisions and workplace law trends tend to reverse along with party changes in the White House.
The exchange also colors the union’s yearslong wage dispute with one of the world’s largest restaurant chains in the same political light.
Painter told Bloomberg Law the response by McDonald’s attorney Willis Goldsmith is “ridiculous and unprofessional.” Goldsmith holds an of counsel position at Jones Day in New York.
“Obviously by writing this kind of letter, they are themselves trying to jack up the profile of this case and politicize it,” Painter said.
McDonald’s told Bloomberg Law in an Oct. 15 email that Painter’s move is “is nothing more than a transparent attempt to interfere with the National Labor Relations Board’s processes.”
James Plunkett, a management attorney and former labor policy director at the U.S. Chamber of Commerce, said politics factor in the case without regard to McDonald’s recent filing.
“The board is a unique agency, and it’s highly politicized in and of itself,” Plunkett said. This whole case, “the joint employer issue, became a political issue as soon as the board filed a complaint against McDonald’s.”
A Democrat-majority board overturned decades of precedent in 2015 during the Obama administration in issuing a case decision that makes it easier to hold multiple companies liable for workplace law violations. The now-GOP-controlled NLRB is working on a new regulation to reverse that decision and restrict circumstances in which companies might face joint liability.
The NLRB is still weighing whether to overturn an administrative law judge who rejected McDonald’s settlement offer to Fight for $15. The judge, Lauren Esposito, said the offer lacks “certain fundamental elements” and suggested McDonald’s “purposefully delayed” the case until the NLRB was under more management-friendly control.
Painter was a candidate for the Minnesota seat vacated by former Sen. Al Franken. He lost to Tina Smith (D), who was state lieutenant governor.
The former ethics chief isn’t directly involved in the McDonald’s case. He filed an amicus letter with the NLRB, arguing that conflict-of-interest rules for presidential appointees—including a White House ethics pledge—require Ring and Emanuel to recuse themselves.
Emanuel was found to have violated ethics rules in another major board case in February. His former employer, law firm Littler Mendelson, didn’t actively represent a party to the case, but ethics officials said he had a conflict because the board’s decision would’ve helped Littler win a separate legal dispute.
Painter says Ring and Emanuel should recuse themselves in the McDonald’s case too, even though the complaint isn’t against their former law firms and those firms don’t currently represent McDonald’s. He said that’s because the Obama administration created new ethical obligations via an executive order that was adopted in large part by the Trump White House.
“Painter was never part of the Trump Administration, he played no role in crafting Executive Order 13770, and he offers no evidence” to support his reading of the order’s intent, Goldsmith said in his response. “To the contrary, in Painter’s recent Senate campaign,” he made calls for impeaching the president a major part of his platform, Goldsmith said.
“You do not have to have been in the Trump White House to be an expert on ethics, that’s a joke,” Painter said. He said the current ethics pledge forbids appointees from working on matters that are “directly and substantially related” to their former employers.
Norman Eisen, former “ethics czar” under President Barack Obama, told Bloomberg Law he agrees with Painter’s reading.
“As the principle drafter of the original executive order that Trump adapted and one who administered it in literally thousands of cases, my firm advice under these circumstances would’ve been that these individuals should recuse themselves from this matter,” Eisen told Bloomberg Law.
Those members staying on the case would not be “consonant with the intent of the order or the promise Donald Trump made to drain the swamp,” he said.
Eisen is board chairman at watchdog group Citizens for Responsibility and Ethics, where Painter was previously vice chairman. Painter teaches ethics law at the University of Minnesota but plans to return to CREW.
The ultimate recusal decision will be made by Ring and Emanuel themselves, along with an agency ethics official. There have been indications neither member believes he is conflicted out of the dispute.
“The Board doesn’t comment on active cases, but in every case, we are committed to following the ethics rules and we will be guided by our internal ethics officer, not the opinions of others,” Ring told Bloomberg Law in an e-mail.
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