On September 17, Senator Warren and four other Democratic senators wrote a letter to all board members that they must “fully comply with federal ethics regulations during reconsideration” of whether employees may use an employer’s email system for union organizing purposes.
Sen. Warren argues:
Member [William J.] Emanuel must recuse himself from participating in this matter. Executive Order 13770 prohibits the involvement of a federal official in a “particular matter involving specific parties” if the official’s former employer is, or represents, such a party. Littler Mendelson P.C., the law firm where Member Emanuel worked until September 2017, represents Purple Communications. While Littler Mendelson does not represent any party to Caesars Entertainment Corporation, the Board’s August 1, 2018 announcement explicitly stated that it is considering using that case as an opportunity to “adhere to, modify, or overrule Purple Communications.” Thus, Member Emanuel’s participation, in any form, in Caesars Entertainment Corporation would present a clear conflict of interest and put him in the position of using the power of his office to influence the interests of his former employer-exactly the scenario that federal ethics regulations are designed to avoid.
In the letter, Sen. Warren erroneously equates this invented conflict of interest issue with the improper determination that board member William Emanuel should have recused himself from the Hy-Brand case, which involved the agency’s joint employer standard.
The letter states:
The Inspector General found that “Hy-Brand was merely the vehicle to continue the deliberations of Browning-Ferris,” and the two cases were effectively the same “particular matter involving specific parties.” Because Member Emanuel's former employer represented a party in Browning-Ferris, his involvement in the vehicle used to overturn it violated Executive Order 13,770. The Board’s Designated Agency Ethics Official agreed with the Inspector General's determination, and the Board voted, three to zero, to vacate the Hy-Brand decision “in light of the determination ... that Member Emanuel is, and should have been, disqualified from participating in this proceeding.”
Based on the Hy-Brand precedent, Member Emanue’s participation in Caesars Entertainment Corporation would likewise be, as the Inspector General described his involvement in Hy-Brand, “a serious and flagrant problem and/or deficiency in the Board's administration of its deliberative process and the National Labor Relations Act.”
Sen. Warren’s analysis of the ethics standard show either a misunderstanding of the rules or a blatant attempt to obstruct the NLRB from taking legitimate action.
Earlier this year, NLRB Inspector General David Berry came to the unprecedented conclusion that board member Emanuel should have recused himself from the Hy-Brand case because “the Hy-Brand deliberation was a continuation of the Browning-Ferris deliberative proceedings.”
Berry concluded Board member Emanuel should have recused himself from the Hy-Brand case, not because Emanuel’s former employer was involved in Browning-Ferris as Sen. Warren suggests, but because Berry viewed Hy-Brand and Browning-Ferris as the same case, impossible to separate the two, and a continuation of the deliberative proceedings in Browning-Ferris. This is due to, as Berry put it, the “wholesale incorporation of the dissent in Browning-Ferris into the Hy-Brand decision consolidated the two cases into the same ‘particular matter involving specific parties.’”
But even the determination that Emanuel should have recused himself in Hy-Brand is off base and without precedent. As a Heritage Foundation legal memo states:
This standard has at least three fundamental flaws. First, neither Berry nor Ketcham identified any authority, precedent, source, or other support for their wholesale-incorporation-equals-consolidation theory. Why is incorporating wording from a decision (or a dissent) in a different case inappropriate in any manner? This theory was not tangential, secondary, or minor. It was the sole basis for concluding that a member of the NLRB violated the Ethics Pledge—and resulted in the Board vacating one of its decisions. A feature so central to such a significant decision should have some kind of foundation or authority to back it up.
As such, Sen. Warren’s reason why Emanuel should recuse himself in the Caesars Entertainment Corporation case is flat out wrong. Even using the unprecedented ethics standard in Hy-Brand, Emanuel should be able to participate in the Caesars Entertainment Corporation case. It could only be known if Emanuel should recuse after the opinion is written. Only then, it would possible to determine if the majority opinion incorporated wholesale the dissent in Purple Communications and the Caesars Entertainment Corporation case was merely a continuation of the past case’s deliberative proceedings.
But it is unlikely that Sen. Warren cares that her letter is misguided. This is just a political ploy to hamstring the NLRB from restoring longstanding board precedent that the Obama administration overturned.
Unfortunately, it appears Republicans in Congress is content with letting Democrats cast doubt on the legitimacy of the NLRB. As I previously wrote, the Senate Committee on Health, Education, Labor, and Pensions (HELP) Chairman Lamar Alexander (R-TN) dismissed concerns from NLRB Chairman John Ring that Democrat Senate HELP may have attempted to interfere with a pending case before the NLRB. To that end, the Competitive Enterprise Institute, today, submitted a FOIA request that hopefully will unearth communications from Democrat HELP staffers and the NLRB.