Dear Member Emanuel:
We write to follow-up on your Jan. 26, 2018 response to our Dec. 21, 2017 letter regarding your participation in a series of National Labor Relations Board (“the Board") actions, including the vote to remand the Browning Ferris Industries (“BFI") case. These actions include a Dec. 14, 2017 Board decision in Hy-Brand Industrial Contractors, 365 NLRB No. 156 (2017) (“Hy-Brand"), overturning the Board’s previous decision regarding its joint employer standard in BFI. On Dec. 15, 2017, the Board directed the General Counsel to request the United States Court of Appeals for the D.C. Circuit to remand BFI back to the Board for reconsideration. For reasons that have yet to be explained, the Board voted unanimously to rescind that direction on December 19. Nonetheless, the General Counsel filed the remand motion later that day. By participating in the Board’s action to bring BFI back to the Board, you are likely in violation of both federal regulations and the Administration’s Ethics pledge.
Prior to your tenure on the Board, you were a senior partner in the labor and employment practice at Littler Mendelson, P.C. (Littler) for 13 years. Littler represents a party to the BFI matter, Leadpoint Industries.[1] As you know, Executive Order 13770 (the “Ethics Pledge") prohibits Executive Branch employees from “participat[ing] in any particular matter involving specific parties that is directly and substantially related to [a] former employer..." Exec. Order. No. 13770(1). A matter is “directly and substantially related" to a former employer if the former employer represents a party in the matter. Exec. Order. No. 13770(2)(d).
Additionally, federal regulations require employees to “endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part." 5 C.F.R. § 2635.101(b)(14). Executive branch employees “should not participate" in a matter when “the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter." 5 C.F.R. § 2635.502(a). That is why in your signed ethics agreement with the Office of Government Ethics you state that “[f]or a period of one year after [your] resignation [from Littler], [you] will not participate personally and substantially in any particular matter involving specific parties in which [you] know the firm is a party or represents a party...."
Accordingly, you should not have participated in any case where Littler represents a party. However, in your January 26 letter to Members of Congress, you stated that you participated in directing the General Counsel to ask the Court to remand BFI back to the Board for reconsideration consistent with precedent set out in the Hy-Brand decision and more favorable to Littler’s client. The court granted the remand request, which benefits the interests of your former firm and its client. This action appears to be in direct contravention of your commitments to the Office of Government Ethics, to the requirements of the Ethics Pledge, and to the requirements of federal regulations.
In your letter, you attempt to explain your actions by saying that you did not know that Littler represented a party in the BFI case. We would like to remind you that at the time of your confirmation in July 2017, you did in fact know that Littler represented a party in the BFI matter. Following your confirmation hearing, on July 14, 1017, we sent you a series of written questions. Senator Murray’s Question 18 specifically asked that you provide a list of all cases decided by the Board and that are currently on appeal in which Littler Mendelson represents a party. In response you produced a list of cases. BFI is clearly indicated on that list. (Attachment A). As a result, it would appear that you did in fact know that Littler was a party to BFI, and that your action in joining the request for remand violates both the Ethics Pledge and the federal regulations.
During your confirmation process, you further committed to Senator Murray in writing that in addition to signing the ethics pledge, you would “request advice regarding recusal issues from the Board’s ethics office." However, you have now acknowledged that you had not received any guidance from the ethics office regarding you recusal obligations in BFI or other cases.
In order to more fully understand the circumstances surrounding your apparent violation of the pledge and the ethics regulations please provide the following by Feb. 16, 2018:
If you have any questions about this request, please contact John_DElia@help.senate.gov, Carly_Rush@help.senate.gov, Kyle.deCant@mail.house.gov, and Lindsay_Owens@warren.senate.gov. We look forward to hearing from you.
