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But Berry’s report did not substantiate allegations that Emanuel provided false information either to Congress or to the inspector general’s office. Berry reported that Emanuel showed a “genuine lack of recall” that Littler had represented a client in the Browning-Ferris joint-employment case at the board. Emanuel’s attorney, Zuckerman Spaeder chairman Dwight Bostwick in Washington, said in a March 22 letter to Berry that “we see no legal or factual basis” supporting the conclusion that Emanuel violated the presidential ethics pledge . “There is a critical difference between cases that involve the same parties and those that involve the same issues. For the purpose of the presidential pledge, the former requires recusal and the latter does not,” Bostwick wrote. Bostwick said Berry’s finding against Emanuel “has the potential to bedevil and frustrate this agency for years to come. Undoubtedly, this decision will be used to ‘weaponize’ the ethics rules for the purpose of improperly excluding presidential appointees from doing their jobs they were sworn to do.” He continued: “The implications for the NLRB’s ethics office and the recusal process are dramatic.” Bostwick said the NLRB’s ethics office “will now need to review all potential issue preclusion conflicts before, during and after each NLRB decision. The question will no longer be the simple one now asked at the outset of a case: ‘Did the member or his/her former employer previously represent one of these parties before the NLRB?’” Bostwick said Emanuel, to the best of his recollection, “was not aware, while working at Littler, that his firm represented any party in” the Browning-Ferris Industries dispute at the board. “With so many attorneys working at Littler across so many geographical offices, no single attorney is aware of more than a fraction of that firm’s representations,” Bostwick wrote in his letter to Berry on Thursday. Bostwick also questioned why nobody at the NLRB ethics office questioned Emanuel’s participation in the Hy-Brand case at the time of the deliberations last year. “Not a single person at the NLRB thought Member Emanuel’s recusal was required—and for good reason,” Bostwick wrote. The presidential ethics pledge, he continued, would have required Emanuel to sit on the sides only if he or his firm had represented a party in the case in front of him.
For the original version including any supplementary images or video, visit https://www.law.com/nationallawjournal/2018/03/23/trump-nlrb-member-denies-violating-ethics-pledge-in-vote-against-obama-labor-ruling/
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