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NLRB Trying to Fend off Call for Member to Recuse Himself

Ethics issues are again raising questions about whether a member of the National Labor Relations Board (NLRB) should recuse himself from participating in a Board decision.

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Board Chairman John F. Ring sent a letter on September 24 to a group of senators who had written him earlier in the month voicing the opinion that Board Member William J. Emanuel should recuse himself from the Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino case. The decision in that case may overturn the 2014 Purple Communications decision from the Obama-era Board, which made it more difficult for employers to control how employees use their employers’ e-mail systems.

The senators’ request comes just over six months after the NLRB vacated another ruling that overturned an Obama-era Board’s decision. On February 26, the Board vacated its decision in the Hy-Brand case, which established a more employer-friendly definition of joint employment than was set by the Obama-era Board’s 2015 Browning-Ferris decision. The Board vacated the Hy-Brand decision after criticism that Emanuel should have recused himself because his former law firm, Littler Mendelson, was involved in the related Browning-Ferris decision.

Since Littler Mendelson also represents the employer in the Purple Communications case, the senators are again calling for him to recuse himself, but that effort is likely to be unsuccessful, according to Burton J. Fishman, senior counsel with Fortney & Scott, LLC, in Washington, D.C.

“Chairman Ring made it very clear both that the Board was following its ethics rules and that there was no basis for a recusal,” Fishman says.

‘Circular Firing Squad’

Although he doesn’t expect a recusal, Fishman does expect calls for recusal to be a continuing and damaging tactic. “This issue will be the most important ‘precedent’ of this Board, as it threatens the foundation of the Board itself,” he says.

“The people nominated for and serving as NLRB members are almost always long-served practitioners in the labor-management sphere,” Fishman says, since Board members typically have careers representing labor or management, with Democratic members often having worked for unions.

“In many respects, the people now calling for the recusal of Ring or Emanuel are providing the ammunition for similar calls for recusal of Democratic appointees in the future,” Fishman says. “This can become the proverbial ‘circular firing squad.’”

Fishman says the tactic is new with this Board. “Other than for situations where a member had direct involvement with the matter before the Board, I cannot recall that anyone has used these kinds of ‘ethics’ arguments to bring about a recusal,” he says.

Arguments for and Against Recusal

In his letter to the senators, Ring referenced his tweet of August 21 in which he stated, “It is essential that the NLRB recusal issues be handled under the prescribed government ethics rules and procedures—not driven by political considerations.” He also told the senators that Board member recusals are to be handled by the NLRB’s designated agency ethics officer, who is to provide “independent and objective advice regarding these matters, and often does so in consultation with the Office of Government Ethics.”

In their letter to Ring, the senators noted that Littler Mendelson represents the employer in Purple Communications, which is pending on appeal before the U.S. 9th Circuit Court of Appeals. The senators claim that since the Board is considering whether to overturn its Purple Communications decision by taking the Caesars Entertainment case, Emanuel’s participation is an improper conflict of interest.

“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,” the senators wrote.

What’s Next

On August 1, the Board issued a notice inviting briefs on whether it should “adhere to, modify, or overrule Purple Communications, Inc.” The deadline to submit comments is October 5.

The Caesars Entertainment case may change the standard set in Purple Communications to the more employer-friendly standard set in the Board’s 2007 Register Guard decision, which held that while union-related communications cannot be banned because they are union-related, neutral policies regarding the permissible uses of employer-provided e-mail aren’t unlawful simply because they have the effect of limiting the use of company e-mail systems for union-related communications.

The Purple Communications decision held that employees who have been given access to their employer’s e-mail system for work-related purposes have a presumptive right to use that system—on nonworking time—for communications protected by Section 7 of the National Labor Relations Act (NLRA), the section that gives employees the right to engage in concerted activity, such as union organizing, and to discuss the terms and conditions of employment.

Until a new decision is issued, Fishman reminds employers that the Purple Communications precedent is in force and they should adhere to it.

Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.