January 7, 2022

The National Labor Relations Board (NLRB) issued formal Notices to Show Cause (Notice) alerting parties that it may re-decide three cases in which former NLRB Member William Emanuel participated due to the fact that Emanuel held a conflicting financial interest that the NLRB’s Designated Agency Ethics Official (DAEO) independently determined should have disqualified him from participation.

The NLRB said that the parties in the effected cases— ExxonMobil Research and Engineering Company, Inc., Marathon Petroleum Co., d/b/a Catlettsburg Refining, LLC, and CVS Pharmacy—were notified of the relevant underlying facts regarding NLRB Member Emanuel’s disqualification through the Notice and the accompanying redacted version of a memorandum issued to the DAEO by the Board’s Inspector General. In the Notice, the Board finds that vacating the affected decisions and orders, and re-deciding the cases, is the presumptively appropriate remedy, but the Notice permits the parties to provide their input on what course the Board should take.

NLRB Chairman Lauren McFerran, and Members Marvin Kaplan, Gwynne Wilcox, and David Prouty joined the Notice, with Member Kaplan concurring only in the determination that the parties should be provided an opportunity to brief the issue of the appropriate remedy for Member Emanuel’s disqualification. NLRB Member John Ring, dissenting in part, agreed that Member Emanuel should not have participated in these cases but disagreed with the majority’s decision to make vacatur the presumptively appropriate remedy before the parties had a chance to brief the issue.

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