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NLRB Chairman Responds to Calls For Recusal of Board Member Emanuel By Democrats


On September 17th, Democratic Senators Elizabeth Warren, Kirsten Gillibrand, Mazie Hirono, Tammy Baldwin, and Cory Booker sent a letter to the Chairman of the National Labor Relations Board ("NLRB") John Ring and urged him to ensure that Board Member William Emanuel is recused from participating in a case in which his former employer, Littler Mendelson, currently represents a party.  (Quite a mouthful, right?  Let us break things down a bit further to make sure we are all on the same page.)

Purple Communications

In 2014, the NLRB issued a ruling in Purple Communications that found that when an employer grants workers access to company e-mail, the employer cannot interfere with the workers using that e-mail on non-working time to organize and advocate for better working conditions.  That decision was met with much angst among employers and pro-business groups.  Currently, that case is on appeal before the Ninth Circuit Court of Appeals.

Currently, the NLRB has a case before it, Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, which could overturn Purple Communications.  Given that Republican appointed Board Members currently hold a 3 - 2 majority on the NLRB, there is much speculation that Purple Communications' days might be numbered.

Recusal Argument

The Senators that wrote the letter to Chairman Ring have argued that Board Member Emanuel should be recused from the Caesars Entertainment case as his former employer, Littler Mendelson, currently represents the employer in the Purple Communications case.  As a result, these Senators have based their argument on the contention that because the NLRB is considering whether to overturn Purple Communications, via Caesars Entertainment, Board Member Emanuel's participation in Caesars Entertainment is an improper conflict of interest.

Chairman Ring's Response

On Monday, Chairman Ring responded and while he acknowledged the contention made by the Senators, he indicated that at the present time, Board Member Emanuel would not be recused from participating in Caesars Entertainment.  The Chairman noted that Board Member recusals are to be handled by the NLRB's Designated Agency Ethics Officer ("DAEO").  As a result, the Chairman expressed his belief that all Board Members would approach each case with an open mind and indicated that Emanuel would continue to participate in Caesars Entertainment, unless the DAEO found otherwise.




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