Labor & Employment Law Daily McDonald’s NLRB cases will remain open until ‘new evidence’ issue is resolved
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Tuesday, January 28, 2020

McDonald’s NLRB cases will remain open until ‘new evidence’ issue is resolved

By Pamela Wolf, J.D.

The “new evidence” purports to be a newly discovered “supplemental recusal list” for Member Emanuel that included McDonald’s and its franchisees.

In the latest development of the long-playing McDonald’s saga at the National Labor Relations Board, an administrative law judge has rejected the General Counsel’s bid to close the books on the cases that were settled by direction of the Board notwithstanding the ALJ’s earlier rejection of the proposed agreements. On January 23, the ALJ ruled that the General Counsel may not withdraw the allegations and answers, effectively closing the cases, until after the motion by the Fast Food Workers Committee and Service Employees International Union to reopen the record and reconsider the latest rulings, including instructions to settle, in light of a newly discovered “supplemental recusal list,” has been resolved.

In a 2-1 December 12, 2019, decision, the Board vacated the ALJ’s order rejecting proposed settlements to resolve unfair labor practice complaints against McDonald’s and 29 franchisees, and instructed her to instead approve the settlements.

Bid to reopen the record and reconsider. On January 7, 2020, the charging parties filed a motion asking the Board to reopen the record to admit “Board Member William Emanuel Supplemental Recusal List,” and to reconsider the recusal question, given that this “newly discovered material evidence” includes this item for recusal: “McDonald’s (including franchisees)-Littler represents many of the franchisees.” The list (Exhibit A) purports to have been prepared by the NLRB’s Office of the Executive Secretary, last updated on February 9, 2018.

Oh no you don’t. Firing back, on January 21, the General Counsel filed an opposition to the motion to reopen the record and for reconsideration, and also moved to strike the “supplemental recusal list” offered by the union as newly discovered evidence. The GC argued that the list is an unauthenticated document that is not self-authenticating, either, and is thus not even admissible. Even if it is admissible, the ethics issue was already considered by the Board, and therefore, the admission of the list would prompt no different result in the Board’s December 12 decision.

Recusal already considered. The GC also points to, among other things, the fact that the recusal issue had already been considered as explained in footnote 2 to the December 12 ruling. The footnote stated that Emanuel had considered the earlier recusal motion and had determined, in consultation with the Board’s Designated Agency Ethics Official, not to recuse himself. That motion, the footnote acknowledged, was based on Emanuel’s former affiliation with the law firms of Littler Mendelson and Jones Day; it sought recusal under Executive Order 13770—Trump Ethics Pledge—and the Standards of Ethical Conduct for Executive Branch. But the Board found recusal unnecessary under either standard.

We’re not done yet. The ALJ nonetheless ruled that the GC’s January 15, 2020, motions requesting permission to withdraw the allegations and relating pleadings will be held in abeyance pending the Board’s ruling on the charging parties’ motion to reopen the record and for reconsideration.

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