(Bloomberg) -- An inspector general's finding that a top Donald Trump labor appointee should have recused himself from a major pro-employer ruling has triggered Democratic calls for hearings, a demand for answers by two U.S. senators and news that a separate IG report is on the way as to whether the appointee committed misconduct.
On Feb. 15, the chair of the National Labor Relations Board disclosed to Congress a report from the agency's inspector general, David Berry, concluding there was “a serious and flagrant problem and/or deficiency” in its handling of conflict-of-interest issues. Berry wrote that William Emanuel, one of several former management-side attorneys whom Trump has appointed to the agency, should have recused himself from a recent ruling that overturned a controversial pro-worker precedent.
The Obama-era “joint employer” case, Browning-Ferris, broadened the circumstances under which employees can bring claims against, or seek collective bargaining with, a corporation that isn't directly signing their checks, such as a franchisor or a contractor's client.
Emanuel's former law firm represented one of the companies in the 2015 case, which the NLRB overturned in December by 3-2 vote.
On Monday, U.S. senators Elizabeth Warren of Massachusetts and Patty Murray of Washington, the ranking Democrat on the Senate committee overseeing the NLRB, wrote letters to Emanuel and to the agency's chair, Trump appointee Marvin Kaplan, accusing the labor board of failing to comply with the Administrative Procedure Act in its overruling of Browning-Ferris. A spokesperson for the NLRB declined to comment.
The Democrats asked the members to answer a battery of questions, including what conversations Emanuel had with the NLRB's designated ethics official, and whether the board will reconsider its December ruling without Emanuel's participation.
Berry's findings, they write in their letter to Emanuel, “indicate that you directly participated in an extraordinarily consequential decision from which the law required your recusal.”
“You directly participated in an extraordinarily consequential decision from which the law required your recusal.”
While Berry's report itself said it was not addressing whether Emanuel's actions constituted “misconduct,” the senators wrote that the question “will be the subject of a separate, forthcoming report” from the NLRB inspector general.
The case in which Emanuel voted, Hy-Brand, involved different companies than Browning-Ferris, but the inspector general wrote that the way the NLRB handled it amounted to a “do over” in which the new case was “merely the vehicle” to reconsider the old one—which at the time was still pending in federal court. In a Feb. 15 letter to members of Congress, Kaplan said the agency was reviewing recusal procedures and “considering appropriate actions” regarding the Hy-Brand case.
The Monday letters follow a missive last week from Murray's House counterpart, Congressman Bobby Scott of Virginia, asking that his committee hold a hearing on the issue with the inspector general and NLRB members including Emanuel. The committee's chair, Republican Virginia Foxx of North Carolina, didn't respond to requests for comment.
To contact the editor responsible for this story: David Rovella at drovella@bloomberg.net.
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