One of the hottest issues before the National Labor Relations Board (NLRB) right now involves class action lawsuits. In the 2012 D.R. Horton case, the NLRB ruled that employers may not mandate arbitration agreements barring employees from joining together in employment-related class action lawsuits against the employer. The Department of Justice (DOJ) has since refused to throw its weight behind the NLRB decision, and recently filed a brief with the U.S. Supreme Court stating as much. This will likely force NLRB attorneys to defend the Board’s position before the Supreme Court, which is not expected to be sympathetic.
This riles Democrats, whose labor union and trial lawyer donors have little sympathy for employers—no matter the crippling cost of legal fees. But it also puts them in the hypocritical position of opposing practices that they previously had no problem with. Currently, they’re pressuring NLRB nominee William Emmanuel, a former labor lawyer for Littler Mendelson, to recuse himself from any case involving the class action issue. Their claim is that it raises conflict of interest concerns, given Emmanuel’s experience as a management-side attorney.
Yet Democrats raised no objections when former NLRB member Craig Becker, who made his career representing labor unions like the AFL-CIO and Service Employees International Union, declined to recuse himself from a case where he’d previously been a participant. Becker explained in the 2011 Lamons Gasket case, and in an earlier concurrence in the 2010 Service Employees Local 121RN case, that he only had to recuse himself from cases involving his former clients or firm.
Otherwise, as he stated in unequivocal language, his involvement raised no concerns:
“…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.”
In other words, NLRB precedent allows the president to appoint individuals who share their views, leaving the White House with the power to appoint management-side or pro-union lawyers as the administration deems fit. Current NLRB nominee Emmanuel has already recused himself for two years from cases involving his former clients, or clients that are represented by his past employer. Consistent with the Becker standard, he shouldn’t have to recuse himself from other cases simply because his views on the matter are consistent with management’s. When pro-union Democrats argue for recusal, it’s nothing more than sour grapes.