The NLRB and Weaponization of Recusal Motions

Tammy McCutchen

National Labor Relations Board member William Emmanuel has been under attack almost immediately after and continuously since he landed at the NLRB.  Bill is my former partner and a former member of the executive committee of the Federalist Society’s Labor and Employment Practice Group, of which I have been chair for many years.  He has been a mentor and good friend.  Thus, the attacks on Bill have been painful to watch.  He was accused of unethical conduct in failing to recuse himself in the Hybrand decision which reversed the Obama Board’s controversial and broad expansion of joint employment liability in the Browning-Ferris decision.  The NLRB’s ethics official had cleared Bill to vote in the Hybrand decision, but after that decision was issued the Inspector General issued a decision that it was unethical for Bill to participate.  Why? Because our law firm, Littler (but not Bill), had represented a party in the Browning-Ferris case and, somehow, Hybrand was the same case — even though the parties in Hybrand were totally different and Littler was not involved in the Hybrand case!  The IG, members of Congress, the media and union-side litigants all were arguing for some new “issue preclusion” rule.  If your prior employer represented a party in a prior case addressing the same legal issue, you must recuse yourself on any case addressing the same issue.  Ridiculous, and with no legal support.  Such a rule would paralyze any BigLaw partner from effectively serving on the NLRB or similar agencies.  Such a rule has never been applied to any NLRB member who previously worked for a union or union-side law firm.

But, Bill was vindicated in a recent report issued by the NLRB.  He did nothing wrong, and was unfairly treated by the NLRB.  It is now time for us to spread the word and help erase the stain that this entire episode put on Bill and his service as a member of the NLRB.  Labor & Employment Practice Group executive committee member Roger King has started that process with a must-read article published on January 2 by Bloomberg Law, “INSIGHT: Attempts to Weaponize Ethics Procedures at NLRB—An Apology Is Owed.”  The article provides a precise summary of the entire episode, highlights how Democrats and unions (if they are different) used an anonymous ethics compliant to derail and delay efforts to reverse a bad Obama Administration policy, and asks the NLRB and its IG to issue a public apology to Bill.  Well said, Roger.

Tammy McCutchen

Principal

Littler Mendelson P.C.


Federalist Society’s Labor & Employment Law Practice Group

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