National Labor Relations Board Member William Emanuel (R) violated a White House ethics pledge by participating in a closely watched case involving his former law firm, the NLRB’s inspector general concluded in a report obtained by Bloomberg Law.
Although Emanuel told Inspector General David Berry that he didn’t realize former firm Littler Mendelson 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 Browning-Ferris litigation focuses on the question of whether recycling plant owner BFI is a “joint employer” of plant workers trying to unionize who were provided by staffing agency Leadpoint Business Services. Emanuel’s former firm, Littler Mendelson, 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.
Still, Berry said the “inconsistency” in Emanuel’s statements to Congress and the IG “is not sufficient to show that” Emanuel “intentionally lied.” Emanuel’s “reaction after being informed of the discrepancy” and emails defending his participation in the case “showed a genuine lack of recall” that Littler was representing Leadpoint, Berry said.
Emanuel has been under fire for conflict-of-interest questions stemming from his participation in the December decision to undo the legal precedent set by the NLRB in the Browning-Ferris case. Berry’s latest report follows a recent finding that Emanuel also should have recused himself from that case, known as Hy-Brand Industrial Contractors.
“I do not remember,” Emanuel told Berry during an interview, when asked how he could have forgotten about his firm’s involvement in a case that has drawn national interest. Emanuel later said it was Littler Mendelson that drew up the list of cases and clients submitted to Congress.
Berry concluded in his report that Emanuel’s interview statements “lack a level of credibility.”
A Littler spokeswoman didn’t respond for comment.
Two-Step on Recusal
During his Senate confirmation process, Emanuel listed Browning-Ferris in response to a request from lawmakers for a rundown of all NLRB cases currently on appeal involving parties represented by Littler Mendelson. Some two months later—after the board reversed the decision in the Hy-Brand case and asked the appeals court to drop Browning-Ferris—Emanuel told Berry he wasn’t aware that the firm was working for Leadpoint on the case.
Emanuel signed an ethics pledge, laid out in an executive order, agreeing to sit out any cases “involving specific parties that is directly and substantially related to my former employer or former clients.” He pointed out during an interview with Berry that Leadpoint was not a central player in the Browning-Ferris litigation and stopped filing legal documents at some point during the appeal.
Dwight Bostwick, a private attorney representing Emanuel in the investigation, said Berry read that pledge too broadly.
Bostwick argued that the Browning-Ferris case was not before the board when members asked the NLRB general counsel to get involved; it was pending in the appeals court. He also said Berry seemed to be demanding that Emanuel recuse himself from any case involving the joint employer issue, noting that Littler did not represent any clients in Hy-Brand.
“Undoubtedly, this decision will be used to ‘weaponize’ the ethics rules for the purposes of improperly excluding presidential appointees from doing the jobs they were sworn to do,” Bostwick wrote in a letter to Berry.
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(Updated to include response from Emanuel's lawyer.)