William Emanuel, one of President Trump’s appointees to the National Labor Relations Board, the main federal labor law enforcement agency, vigorously denied he violated an ethics pledge by not recusing himself from a major board ruling in December.
In a March 22 letter to the board’s Office of the Inspector General, Emanuel’s lawyer argued that the inspector general’s office was wrong when it determined last month that Emanuel had a conflict of interest when he voted on a corporate liability case called Hy-Brand.
The letter says Emanuel met in January with an NLRB ethics officer, who agreed he had no obligation to recuse himself. The ethics officer, however, subsequently declined to provide that decision in writing to Emanuel, saying that the inspector general’s office had directed the officer not to do it. It is not clear why the inspector general would give such an order.
“This important, uncontested fact demonstrates that before the OIG issued his unprecedented and erroneous decision … that the ethics officer, who is in charge of ethics issues and recusal determinations for the NLRB, opined that no recusal issue existed,” the letter stated. The letter was provided to members of Congress and obtained by the Washington Examiner.
The NLRB’s Inspector General’s Office directed inquiries to the main press office, which did not respond to a request for comment.
Emanuel has been at the center of a controversy over whether he should have recused himself from the Hy-Brand case, which reversed a major Obama administration-era case called Browning-Ferris. The cases involved the question of when one business is so closely involved with a second company that the first one can be held legally liable for the second’s workplace violations.
In the Browning-Ferris case, the board said that liability extended to when one business had “indirect control” over the other, a potentially vast expansion of the prior standard of “direct control.” The case was highly controversial and business groups lobbied Congress and the White House to reverse it. In December, the board voted 3-2 in the Hy-Brand case to restore the old direct control standard. Emanuel voted with the majority.
The NLRB abruptly vacated that decision last month when David Berry, the board’s inspector general, determined that Emanuel should have recused himself from Hy-Brand because his former law firm, Littler Mendelson, represented a plaintiff in Browning-Ferris.
Berry argued that “the board’s deliberation in Hy-Brand, for all intents and purposes, was a continuation of the board’s deliberative process in Browning-Ferris,” because the majority opinion in Hy-Brand incorporated parts of the dissent from Browning-Ferris. Berry said Emanuel therefore violated his presidential ethics pledge by not recusing himself. Democratic lawmakers, who have been extremely critical of the board for reversing Browning-Ferris, have called for further inquiries into the issue.
Emanuel strenuously disputed Berry’s interpretation in the March 22 letter, saying the two cases were separate. “The fact that a new majority opinion uses language from the dissent of a prior case is not uncommon and does not make the two cases the same matter.” To say otherwise was a “radical notion” that would make NLRB cases “completely unworkable.”
