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National Labor Relations Board Recusal Saga Continues

Democrats and union allies have been transparent in their goal to block or delay any decisions by the Trump National Labor Relations Board (NLRB), as part of an effort to preserve the pro-union rulings by the Obama-era Board.

As I’ve detailed in previous posts (here and here), the NLRB Inspector General issued a recent report that called for the recusal of Board member William Emanuel from participating in an NLRB case. The report incorrectly concluded Board member Emanuel should have recused himself from participating in the case because of an unprecedented and overly broad interpretation of conflict of interest standards. Senators Elizabeth Warren (D-MA) and Patty Murray (D-WA) glommed onto this report and used their bully pulpit to pressure the Board into vacating the decision. Ultimately, the Board bowed to the pressure from the Senate and vacated the decision.

Now, since the tactic of using an expansive view of what constitutes a conflict of interest successfully preserved an Obama-era Board policy, the ploy is being duplicated.

The International Union of Painters and Allied Trades filed a motion to intervene in an NLRB case for the purpose of seeking reconsideration of the Board’s decision in Boeing v. Society of Professional Engineering Employees in Aerospace, which overturned precedent related to neutral workplace policies and protected concerted activity. The painters union argues it should be permitted to intervene because “the [Boeing] decision directly impacted a separate dispute they’re involved in with Caesars Entertainment Corp. over confidentiality requirements and a ‘no camera’ rule for workers at a Las Vegas casino,” as reported by Bloomberg Law.

A key pillar of the painters union’s argument for reconsideration of the Boeing decision is that “Member Emanuel was formerly a member of [employment law firm] Littler Mendelson before he took his position on the Board. His firm, in multiple cases, represented the Boeing Company… This renders Mr. Emanuel disqualified, and he should have recused himself from deciding the Boeing Co. case.”  

But the painters union’s reasoning is comparable to the widely criticized NLRB Inspector General report’s novel interpretation of the conflict of interest standard that covers the agency.

As Raymond LaJeunesse, Vice President at the National Right to Work Legal Defense Foundation, notes in a post, the “relevant authority for when recusal is required is Executive Order 13770, which prohibits an appointee from participating in a ‘particular matter involving specific parties.’”

For evidence of the need for recusal, the painters union includes an exhibit in its motion to intervene that shows Littler Mendelson rendered legal services to Boeing and Caesars Entertainment, but not in any cases before the NLRB. In short, the evidence presented by the painters union dissolves any concerns over a conflict of interest issue. Neither William Emanuel nor Littler Mendelson had any cases before the NLRB involving Boeing or Caesars Entertainment.

As such, there is no reason for William Emanuel to recuse or reason for the NLRB to reconsider its Boeing decision. For recusal, a Board member must have participated in a “particular matter involving specific parties” before the NLRB. Since all the legal services provided by Littler Mendelson to Boeing and Caesars Entertainment are in legal arenas outside of the NLRB’s jurisdiction, there is no conflict of interest concern. Simply, Board member Emanuel does not have any direct ties to the Boeing case.

The NLRB Inspector General and private entities, like labor unions, cannot be allowed to highjack the authority of the Board by misinterpreting and unilaterally expanding ethics standards.

It is imperative for Congress, the U.S. Office of Government Ethics or the Department of Justice to assert their oversight and investigatory authority to unearth whether there is any foul play involved in this campaign to undermine the authority of the NLRB.