What’s Next for Labor Board Member Who Violated Ethics Rules?

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By Hassan A. Kanu

Labor board member William Emanuel (R) is not responding to calls for his resignation from a pair of Democrats after he was found to have violated the Trump administration’s conflict-of-interest rules.

The question of resignation, which was raised by Sen. Elizabeth Warren (D-Mass.) and Rep. Keith Ellison (D-Minn.), is the most important one stemming from National Labor Relations Board Inspector General David Berry’s conclusions. Berry recently found that Emanuel wrongly participated in a case in which his former law firm was involved and another related matter.

Emanuel can be removed from his post only by President Donald Trump, who appointed the former management-side lawyer to the five-member partisan board last year. The board member has hired a top Washington, D.C., white collar defense attorney, and seems unlikely to leave on his own accord. He also has significant support from allies in the business community, who say that Democrats are stretching the bounds of conflict-of-interest rules for political reasons.

Emanuel directed Bloomberg Law to his lawyer when asked to comment shortly after Warren called for his resignation March 23.

Board Member Rejects Agency Watchdog’s Findings

Emanuel was found in violation of the White House’s ethics pledge for indirectly participating in Browning-Ferris, a joint employer case with major implications for labor policy and businesses that use a franchise model or contracting arrangements. His former employer, law firm Littler Mendelson, represented one of the parties in the case.

Dwight Bostwick, a partner and chairman at law firm Zuckerman Spaeder, said March 23 that his client’s position is set forth in a response letter to Berry. The firm touted its reputation for representing people “in the worst situations of their lives” in news reports last year. Zuckerman Spader was among the firms representing Dominique Strauss-Kahn, the former International Monetary Fund chief caught up in financial and sex scandals, and represented senior executives at Enron during the company’s accounting scandal.

Bostwick provided the letter to Bloomberg Law, which he said was given to lawmakers along with the investigation report, and should have been made public simultaneously. He declined to comment specifically on the calls for Emanuel to resign.

The inspector general’s “determination that the Presidential pledge was violated because these two distinct cases involving entirely separate parties are the ‘same matter’ and, therefore, Member Emanuel should have recused himself, is incorrect,” Bostwick writes.

The IG report and a preliminary memo point to emails from former Chairman Philip Miscimarra (R) to Emanuel and other members which state, in effect, that the board was reissuing a dissenting opinion Miscimirra wrote in Browning-Ferris in a new case called Hy-Brand, and urging them not to change Miscimarra’s draft opinion.

Although the two cases started out as two distinct and separate matters, the manner in which the former Chairman marshaled Hy-Brand through the Board’s deliberative process effectively resulted in a consolidation of the two matters,” Berry said in a preliminary memo. “In short, the practical effect of the Hy-Brand deliberative process was a ‘do over’ for the Browning-Ferris parties.”

IG: Emanuel’s Answers ‘Lack Credibility’

The board withdrew the Hy-Brand decision after the IG’s preliminary findings. The standard established during former President Barack Obama’s administration, which makes it easier to hold multiple entities liable as “joint employers” for labor violations, went back into effect afterward.

Berry concluded in his report that Emanuel’s answers during an investigatory interview “lack a level of credibility,” a charge Warren cited in calling for his immediate resignation.

The labor board declined to comment on the matter. Management-side attorneys have said the issue is being overblown.

Roger King, a senior lawyer for the HR Policy Association, told Bloomberg Law March 23 that the calls for Emanuel’s resignation are “based on a factually inaccurate, legally inaccurate IG report that’s without precedent.”

“The person that should be considered for resignation, frankly, is IG Berry,” King said. “He’s doing a great disservice to the future of the board by becoming so politicized in his approach.”

Emanuel is likely to be required to undergo further ethics training, but the board member isn’t obligated to do anything in response to the lawmakers’ calls.

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