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What’s Sauce for the Goose Is Sauce for the Gander, Even at the National Labor Relations Board

Raymond J. LaJeunesse August 02, 2017
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An article in the July 31, 2017, Bloomberg BNA Daily Labor Report notes that William Emanuel, a lawyer with Littler Mendelson PC and one of President Donald Trump’s two current nominees to the National Labor Relations Board, “signed an ethics agreement pledging to recuse himself for a two-year period from board cases involving any of his former clients as well as parties represented by Littler Mendelson.” The article further reports that Senator Elizabeth Warren (D-Mass.) has suggested that Emanuel should “also sit out any case involving the hotly contested question of whether employers can force their workers to sign class action waivers,” because he “has represented parties on the class action waiver issue in a case before the board, . . . his firm is counsel in a number of others[, and h]e has also co-written briefs in U.S. Supreme Court cases arguing that the agreements aren't unlawful restraints on employees’ right to engage in collective activity.” (Emphasis added.)

However, unless the standards for recusal are more stringent for nominees of President Trump than they were for nominees of President Barack Obama, Emanuel can ethically ignore Senator Warren’s suggestion and need not recuse himself in all class-action waiver cases, even though that is a “hotly contested” issue.

The issue in Lamons Gasket Co., 357 NLRB 739 (2011) (2-1 decision), was whether the Board should overrule the modification of the recognition bar in Dana Corp. 351 NLRB 434 (2007) (3-2 decision), which had “established a 45-day ‘window period’ after voluntary recognition during which employees [could] file a decertification petition . . . .” Lamons Gasket, 357 NLRB at 739. Given the dissents in both of those cases, that clearly was also a “hotly contested” issue.

One of the Board Members in the Lamons Gasket majority was Obama appointee Craig Becker, formerly an attorney with the AFL-CIO. National Right to Work Legal Defense Foundation attorneys represented the decertification petitioner in Lamons Gasket. We moved “for the recusal of Member Becker based on the fact that, as counsel for an amicus curiae, he signed a brief in Dana Corp.” that “was jointly filed by the United Auto Workers (as a party to the case) and the AFL-CIO (an amicus curiae and Member Becker’s then-employer).” Becker declined to recuse himself from Lamons Gasket for “the reasons fully explained in his concurrence in Service Employees Local 121RN (Pomona Valley Hospital Medical Center), 355 NLRB 234, 240 fn. 3 (2010) [Member Becker ruling on motions to recuse].” 357 NLRB at 740 n.3. The referenced footnote, 355 NLRB at 240 n.3, reads as follows:

The Moving Parties in AT&T Mobility and Aramark argue that, under the terms of Executive Order 13490, my signing of the brief in the earlier Dana representation case necessitates my recusal from those two pending cases in which parties have asked the Board to revisit the legal question addressed in Dana. But while the Moving Parties quote sec. 1(2) of the Order, which requires that, for a period of 2 years after assuming office, I recuse myself from participation “in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients,” the Moving Parties do not quote (or acknowledge in any way) sec. 2(k) of the Order, which defines the term “directly and substantially related” to encompass only “matters in which the appointee’s former employer or a former client is a party or represents a party.” Neither of my former employers is a party or represents a party in AT&T Mobility or Aramark. Moreover, my former employer and client, the AFL–CIO, was not a party to the original Dana case, but rather an amicus curiae. Thus, my signing of the brief in the earlier Dana case is appropriately analyzed under the principles set forth in the text that follows.

One of “the principles in the text that follows” Becker’s footnote is that

under Federal labor law, the President is entitled to appoint individuals to be Members of the Board who share his or her views on the proper administration of the Act and on questions of labor law policy left open by Congress. That process would be frustrated if the expression of views on such questions were considered disqualifying or grounds for recusal when cases raising those questions arose before the Board. 

355 NLRB at 241.

Becker’s full opinion in Service Employees Local 121RN explains at great length, relying on judicial precedents, the reasons why Emanuel need not recuse himself in class-action waiver cases unless they involve former clients or his former firm. Id. at 238-46. That is, unless what’s sauce for the goose is not sauce for the gander.

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