Two unions are alleging a conflict of interest involving National Labor Relations Board (NLRB) Member William Emanuel should invalidate the NLRB’s recent decision in Caesars Entertainment Corp. d/b/a Rio All-Suites, 368 NLRB No. 143 (2019), in which the Board overruled Purple Communications, Inc., 361 NLRB 1050 (2014). Caesars Entertainment held that employees do not have a statutory right to use company email for union or other protected activity.
At the time Caesars Entertainment was decided, Purple Communications was on appeal before the U.S. Court of Appeals for the Ninth Circuit. Member Emanuel’s former firm has represented Purple Communications since 2017 in that case. In light of its decision in Caesars Entertainment, the NLRB subsequently asked the Court to remand Purple Communications to the Board “for further consideration consistent with its Decision in Caesars Entertainment.”
This all-too-familiar situation is a reminder that, early in Member Emanuel’s tenure, the Board had to withdraw its joint employer Hy-Brand ruling, which overruled the Obama-Board’s Browning-Ferris decision, in part because Emanuel’s former firm represented staffing firm Leadpoint, which directly employed the workers who were allegedly jointly employed by Browning-Ferris. Hy-Brand Industrial Contractors, Ltd., 366 NLRB No. 93 (2018).
The unions’ allegations come as the NLRB is reworking its recusal rules in response to Emanuel’s improper participation in the Hy-Brand decision. In Caesars Entertainment, after consulting with the Agency’s ethics official, Emanuel determined that he did not have to recuse himself. The Board noted that Emanuel’s former firm did not represent any party in Caesars Entertainment and that Emanuel believed his participation would not cause a reasonable person with knowledge of the facts to question his impartiality.
The unions disagree. The charging party in Caesars Entertainment, an affiliate of the International Union of Painters & Allied Trades, filed a Motion for Reconsideration of the Board’s decision on January 9 on the basis that the decision is invalid because of the purported conflict of interest. The Communications Workers of America (CWA), the charging party in Purple Communications, filed a Motion to Intervene and for Reconsideration in Caesars Entertainment on the same basis. The CWA also filed an Opposition to the Board’s Motion to Remand Purple Communications with the Ninth Circuit citing conflict of interest grounds. The CWA further argues that Purple Communications should not be remanded because, if Emanuel recuses himself, a remand would be to a two-person Board, since there are currently only three members of the Board (Members Emanuel, Kaplan, and Chairman Ring), and a two-Board could not decide this case.
While even the union has expressed doubts the Board will grant its Motion for Reconsideration, employers should stay tuned to see what effect, if any, this has on the Caesars Entertainment decision.