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Meanwhile, the ethics agreement and financial disclosure for Peter Robb, the nominee for the NLRB general counsel, provides a snapshot of the management-side attorney’s clients and compensation, in addition to his pledge to refrain from working on particular matters connected to his Vermont-based law firm Downs Rachlin Martin.
Robb, nominated by President Donald Trump in September, would have the power as general counsel to bring cases that could potentially void or undercut Obama-era priorities.
His disclosure identified his firm, Brattleboro Memorial Hospital, Dominion Nuclear Connecticut and the National Bargaining Association as clients. He said in a letter to the NLRB’s ethics office that he will “not participate personally and substantially” in matters that have a direct impact on his interests, unless he first obtains a waiver. On his financial disclosure form, Robb listed his current salary and bonus at $414,525. He joined Downs Rachlin Martin in 1995 from the Washington office of Proskauer Rose.
The confirmation of Emanuel and Marvin Kaplan, most recently a lawyer at the Occupational Safety and Health Review Commission, gives the NLRB its first Republican leadership in eight years. A spokesperson for the NLRB declined to comment about the resolution of the ethics dispute.
Emanuel’s financial disclosure identified 49 former clients that—absent a waiver from the agency—could present ethics hurdles if matters involving them come to the labor board. Ethics rules bar many executive agency appointees from working on matters that involve former clients for at least a year.
The clients identified by Emanuel include Uber Technologies Inc., which has several cases pending before the board, JPMorgan Chase Bank, MasTec Inc. and Nissan North America Inc. Uber this year fought the NLRB over the national scope of subpoenas. Emanuel also said he provided legal services to the law firm Irell & Manella. Littler Mendelson represents MasTec in the U.S. Supreme Court now, challenging an NLRB ruling in a dispute over workers who spoke with a local news station’s consumer watchdog reporter.
Lawyers at Outten & Golden, an employee-side firm, contend Emanuel’s work for clients defending arbitration agreements should preclude him from participating in certain matters at the labor board. Outten & Golden’s Justin Swartz, writing in his request that Emanuel recuse, said Littler Mendelson has “drafted, enforced, and defended the legality of many mandatory arbitration agreements with collective action prohibitions.”
The issue of conflicts of interest came up Friday in a discussion about Monday’s U.S. Supreme Court arguments that will confront whether employment agreements that ban class actions violate federal law.
“A motion has been filed in one pending case raising the issue he should recuse himself because he was counsel to several cases where this issue was at stake and his former law firm continues to be counsel in numerous cases raising this issue. Whether he will be able to participate is an open question,” Craig Becker, general counsel to the AFL-CIO and former NLRB board member, said about Emanuel.
Becker said he did not expect any swift changes in priorities—including any effort to undermine the power of workers to join class actions—at the newly composed NLRB. “We think board precedent in this area combined with Supreme Court precedent respecting the board is so strong the board will not change its position,” Becker said. “This is not an issue the board has flip-flopped on like some others.”
Any major change in approach to arbitration agreements, Becker said, would generate significant briefing from interested parties. “There are a number of cases pending where this issue is at stake,” he said. “If the board is contemplating a change, we would expect a notice that they were considering that.”
Marcia Coyle in Washington contributed reporting.
