Ethics Pledges Get Close-Up at NLRB Amid Leadership Changes

The National Law Journal Erin Mulvaney
September 29, 2017

The National Labor Relations Board, now under Republican leadership, is facing early pressure from employee advocates to confront ethical issues associated with one member’s prior work at the law firm Littler Mendelson.

William Emanuel,  confirmed Monday  to the labor board, immediately faced headwinds stemming from his lengthy career representing companies in labor and employment disputes. The law firm Outten & Golden  has urged the labor board to disqualify  Emanuel from hearing certain disputes involving arbitration agreements that waive class actions.

Meanwhile, the ethics agreement and  financial disclosure for Peter Robb, the nominee for the NLRB general counsel, provides a snapshot of the management-side attorney’s clients and compensation, in  addition to his pledge to refrain  from working on particular matters connected to his Vermont-based law firm Downs Rachlin Martin.

Robb,  nominated by President Donald Trump  in September, would have the power as general counsel to bring cases that could potentially void or undercut Obama-era priorities.

His disclosure identified his firm, Brattleboro Memorial Hospital, Dominion Nuclear Connecticut and the National Bargaining Association as clients. He said in a letter to the NLRB’s ethics office that he will not participate personally and substantially ” in matters that have a direct impact on his interests, unless he first obtains a waiver. On his financial disclosure form, Robb listed his current salary and bonus at $414,525. He joined Downs Rachlin Martin in 1995 from the Washington office of Proskauer Rose.

The confirmation of Emanuel and Marvin Kaplan, most recently a lawyer at the Occupational Safety and Health Review Commission, gives the NLRB its first Republican leadership in eight years. A spokesperson for the NLRB declined to comment about the resolution of the ethics dispute.

Emanuel’s financial disclosure identified 49 former clients that absent a waiver from the agency could present ethics hurdles if matters involving them come to the labor board.  Ethics rules bar many  executive agency appointees from working on matters that involve former clients for at least a year.

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Lawyers at Outten & Golden, an employee-side firm, contend Emanuel’s work for clients defending arbitration agreements should preclude him from participating in certain matters at the labor board. Outten & Golden’s Justin Swartz, writing in his request that Emanuel recuse, said Littler Mendelson has drafted, enforced, and defended the legality of many mandatory arbitration agreements with collective action prohibitions. ”

The issue of conflicts of interest came up Friday in a discussion about  Monday’s U.S. Supreme Court arguments  that will confront whether employment agreements that ban class actions violate federal law.

A motion has been filed in one pending case raising the issue he should recuse himself because he was counsel to several cases where this issue was at stake and his former law firm continues to be counsel in numerous cases raising this issue. Whether he will be able to participate is an open question, ” Craig Becker, general counsel to the AFL-CIO and former NLRB board member, said about Emanuel.

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