According to the October 3 Daily Labor Report, “New labor board member William Emanuel (R) should stay out of all pending cases related to the legality of class action waivers for workers because of his long history of litigating the issue as a management-side lawyer, a New York law firm argued in a recent motion to the board.”
However, Member Emanuel can cite former National Labor Relations Board Member Craig Becker, a union-side lawyer, for the principle that Emanuel does not have to recuse himself in all class-action waiver cases, even though he previously took a position on the issue when in private practice.
The NLRB in 1966 created what is called the “recognition bar,” a rule that where an employer voluntary recognized a union without an election, based on some showing of majority support for the union, the Board would not process a petition for an election to oust that union for a “reasonable time” after recognition. However, the Board later modified the recognition bar in Dana Corp. 351 NLRB 434 (2007) (3-2 decision), establishing a 45-day period after voluntary recognition during which employees could file a petition for an election to decertify the union.
Four years later, in Lamons Gasket Co., 357 NLRB 739 (2011) (3-1 decision), the issue was whether the Board, on which Becker then was serving, should overrule Dana Corp., despite the fact that in one of every four elections held under Dana Corp. an employee majority voted against union representation, id. at 751 (Member Hayes, dissenting).
National Right to Work Legal Defense Foundation attorneys represented the decertification petitioner in Lamons Gasket. We moved “for the recusal of Member Becker based on the fact that, as counsel for an amicus curiae, he signed a brief in Dana Corp.” that “was jointly filed by the United Auto Workers (as a party to the case) and the AFL-CIO (an amicus curiae and Member Becker’s then-employer)” urging that the recognition bar should be upheld. However, Becker declined to recuse himself from Lamons Gasket for “the reasons fully explained in his concurrence in Service Employees Local 121RN (Pomona Valley Hospital Medical Center), 355 NLRB 234, 240 fn. 3 (2010) [Member Becker ruling on motions to recuse].” The referenced Service Employees Local 121RN footnote, 355 NLRB at 240 n.3, reads as follows:
The Moving Parties in AT&T Mobility and Aramark argue that, under the terms of Executive Order 13490, my signing of the brief in the earlier Dana representation case necessitates my recusal from those two pending cases in which parties have asked the Board to revisit the legal question addressed in Dana. But while the Moving Parties quote sec. 1(2) of the Order, which requires that, for a period of 2 years after assuming office, I recuse myself from participation “in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients,” the Moving Parties do not quote (or acknowledge in any way) sec. 2(k) of the Order, which defines the term “directly and substantially related” to encompass only “matters in which the appointee’s former employer or a former client is a party or represents a party.” Neither of my former employers is a party or represents a party in AT&T Mobility or Aramark. Moreover, my former employer and client, the AFL–CIO, was not a party to the original Dana case, but rather an amicus curiae. Thus, my signing of the brief in the earlier Dana case is appropriately analyzed under the principles set forth in the text that follows.
One of “the principles in the text that follows” Becker’s footnote in Service Employees Local 121RN is that
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.
Id. at 241.
Becker’s full opinion in Service Employees Local 121RN has other passages, including quotes and cites, that further support the conclusion that, like Member Becker, Member Emanuel does not need to recuse himself in class-action waiver cases unless they involve his former clients and/or law firm.
- 1 - 357 NLRB at 740 n.3.
- 2 - 357 NLRB at 740 n.3.