September 17, 2018

Warren, Colleagues Call on NLRB Chairman to Enforce Ethics Regulations and Ensure Member Recusal from Key Ruling on Workers' Rights

Senators Say Board Member Emanuel Must Be Recused from Re-Considering Purple Communications to Comply with Federal Ethics Rules

Text of the Letter (PDF)

Washington, DC - United States Senator Elizabeth Warren (D-Mass.), along with Senators Kirsten Gillibrand (D-N.Y.), Mazie Hirono (D-Hawaii), Tammy Baldwin (D-Wisc.), and Cory Booker (D-N.J.), sent a letter to John Ring, Chairman of the National Labor Relations Board (NLRB), urging him to enforce ethics federal regulations and ensure that NLRB Member William Emanuel is recused from participating in overturning a case in which his former employer currently represents a party. 

The NLRB in 2014 ruled in Purple Communications that when an employer grants workers access to company email, they generally cannot interfere with efforts to organize and advocate for better working conditions just because they involve the use of workplace email.  This decision is currently pending on appeal before United States Court of Appeals for the Ninth Circuit, which has yet to rule on the case.  Nonetheless, under the leadership of Chairman Ring, the NLRB is reconsidering its decision in Purple Communications as it considers another case, Caesar's Entertainment Corporation.

In their letter to Chairman Ring, the senators noted that Littler Mendelson, Member Emanuel's former law firm, currently represents the employer in the Purple Communications case and argued that because the Board is considering whether to overturn Purple Communications, Member Emanuel's participation is an improper conflict of interest under federal ethics regulations.

"...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

The letter also highlights the nearly identical circumstances between the NLRB's reconsideration of Purple Communications and those of the Hy-Brand decision, which the Board attempted to use to reverse Browning-Ferris, a 2015 decision that ensured workers' right to bargain with employers that have indirect control over their working conditions. Due to Littler Mendelson's involvement in the Browning-Ferris case, Hy-Brand was vacated in February after an Inspector General investigation determined that Member Emanuel had a conflict of interest with his former law firm and, under federal ethics rules, should not have participated in the Hy-Brand decision. 

"Under your leadership, the Board has the opportunity to regain the public's trust that it is impartially enforcing federal law, but it can do so only if its members avoid any conflict of interest and scrupulously follow federal ethics requirements," the senators continued.

The senators strongly urged Chairman Ring to protect the integrity of the NLRB's decision-making process by enforcing all applicable ethics standards and ensuring that Member Emanuel is recused from the Board's deliberations in Purple Communications.