Warren Wants Labor Board Member Out Over Ethics Questions

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By Chris Opfer and Hassan A. Kanu

Sen. Elizabeth Warren (D-Mass.) March 23 called on National Labor Relations Board Member William Emanuel (R) to resign from his post in the wake of an ethics pledge violation.

“According to the Board’s independent watchdog, Mr. Emanuel violated his ethics agreement and participated in a case where he had a clear conflict of interest,” Warren said in a press statement. “Mr. Emanuel’s job is to give workers a fair shake––and he no longer has the credibility to do so. He should resign immediately.”

NLRB Inspector General David Berry recently concluded that Emanuel broke a White House ethics pledge by participating in a closely watched case involving his former law firm, Littler Mendelson.

Although Emanuel told Berry that he didn’t realize the firm represented a business in the seminal Browning-Ferris Industries case, he previously flagged the litigation for lawmakers as one that he might need to sit out, according to Berry’s report. Emanuel then joined the rest of the five-member board in directing its top attorney to ask an appeals court to drop the case.

The former management attorney was “notified in writing” of Littler’s role in the case and received “a lot of pushback from the career staff” about whether he should participate, Berry wrote in his report. He decided his participation was appropriate anyway. He then joined the Republican board majority in reversing an Obama-era “joint employment” rule in a separate case and asking that Browning-Ferris be dropped.

Emanuel defended the move during an IG investigation in part by saying that the case did not present a conflict. He argued that the case was before the federal appeals court, not the board, and that the company Littler represented was no longer participating.

The Browning-Ferris litigation focuses on the question of whether recycling plant owner BFI is a “joint employer” of workers trying to unionize who were provided by staffing agency Leadpoint Business Services. Littler represents Leadpoint in the litigation.

Joint employment liability is a central labor policy question. Businesses in a wide range of industries that use franchise, staffing, and contract arrangements have said wider liability makes them responsible for workers they do not control. Unions and worker advocates say a broader approach cuts through complicated arrangements to give employees a seat at the table with those actually deciding the terms and conditions of their jobs.

The board in 2015 expanded the circumstances under which one business can be considered a joint employer of another business’s workers in Browning-Ferris, a decision still on appeal that drew sharp criticism from Republicans and the business community.

In December 2017, a Republican-majority board reverted to a more limited joint employment test in a separate case days after Emanuel was sworn in. He later signed on to a directive instructing General Counsel Peter Robb to ask an appeals court to drop its consideration of the Browning-Ferris case.

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