President Joe Biden’s nominee for a Republican spot on the National Labor Relations Board, Joshua Ditelberg, may be the most prominent labor attorney you’ve never heard of.
A partner at Seyfarth Shaw LLP in Chicago, he’s spent the last three decades quietly shaping some of the most consequential issues in the field—from joint employment and corporate restructuring to race-related protests in professional football—all while going out of his way to eschew personal recognition, those who know him say.
Ditelberg will no longer be able to avoid the spotlight, however, as his nomination alongside current NLRB Chair Lauren McFerran announced May 23 has already garnered protest from the right. Business advocates accuse Biden of manipulating the calendar to lock down a Democratic majority on the board into 2026. It’s unclear whether he could get the votes to pass the Democratic-controlled Senate alone.
But those who have known Ditelberg throughout his career say he’s the opposite of a partisan warrior. A scholar with a penchant for gray suits and oval wire-rimmed glasses, he possesses a humble, unassuming style that could bring harmony to the board, according to colleagues—assuming he steers clear of ethical pitfalls that have ensnared other members.
“Even as a relatively junior attorney, it was clear that Josh would never tell you he’s the smartest person in the room,” said Philip Miscimarra, who worked with Ditelberg at Seyfarth and went on to chair the NLRB in 2017 during the Trump administration.
“It would only take about a minute or two of discussion with Josh before most people would conclude he was the smartest person in the room,” said Miscimarra, now at Morgan, Lewis & Bockius LLP. “And neither of those things have changed.”
‘The Professor’
Ditelberg’s cool demeanor has proved an asset in tough cases, fellow attorneys said in interviews.
Stephen Yokich, a union-side attorney in Chicago, worked alongside Ditelberg in a case where union members sued both the union and the employer, and said he was surprised by how easily they got along.
“It’s one of those areas in labor law where you work with company people because you want to present a coherent defense,” said Yokich of Dowd, Bloch, Bennett, Cervone, Auerbach & Yokich LLP. “He’s a brilliant sort of lawyer, he works very hard, and he’s a decent human being.”
Ditelberg’s low-key demeanor hasn’t hindered him from getting results, though. In 2017, he defended the Dallas Cowboys from an unfair labor practice charge over players kneeling during the national anthem. A union filed the charge after team owner Jerry Jones said he would bench players who “disrespect” the flag. The Cowboys hired Seyfarth, and Ditelberg was put on the case. The charge was withdrawn two weeks later.
“It was a pretty quick kill, the case didn’t last that long, and at the time it was a hot issue,” said Bill Dritsas, a retired Seyfarth attorney who worked on that case with Ditelberg and others during his time at the firm. “I had a talent for finding really smart people to work with me, so I glued to him early on.”
Ditelberg’s encyclopedic knowledge of labor law, especially, was apparent. “I used to tease him and call him ‘The Professor,’” Dritsas said.
Ditelberg declined to be interviewed for this article.
Joint Employer, Revisited
There is one client of Ditelberg’s that stands above the rest: Browning-Ferris Industries of California Inc., the company at the center of an Obama-era ruling that expanded the joint-employer standard, making it easier for employers to be held liable for labor violations committed by franchisees and contractors.
The Republican-led board under the Trump administration was eager to overturn Browning-Ferris, and did so in late 2017. But it quickly led to scandal when the majority reversed the decision two months later over an ethics imbroglio involving then-member William Emanuel, whose former law firm had worked on the case.
The board eventually replaced Browning-Ferris with a narrower employer-friendly measure through a federal rule, which was later displaced by another regulation approved by a Democratic NLRB majority under Biden. But the ethics dust-up left lasting scars on the board and led to a thorough review of its recusal process.
Ditelberg, while well-versed in joint employer litigation, may have to sidestep similar landmines given his own involvement with the case.
While NLRB members are banned from participating in cases involving a former client, they may participate in decisions that help former clients indirectly. For example, a board member who represented Coca-Cola in private practice couldn’t participate in a case where Coke is a party. But they could take part in a similar case with Pepsi, even if the result will has an industry-wide effect that ultimately helps Coke, too.
That means Ditelberg couldn’t partake in a case where Browning-Ferris is a party, but could theoretically take part in a board decision or rulemaking on joint employment.
Ethics questions aside, the selection of someone with Ditelberg’s experience signals that Republicans want a board member with deep knowledge of the joint employer standard—and may plan to strike back once they’re back in power, said Anne Marie Lofaso, a former NLRB attorney and labor law professor at West Virginia University.
“For some reason, Republicans have joint employer on the mind, and it really upsets them,” Lofaso said. “This is an area that’s ripe for oscillation, and this signals it’s going to go there.”
If the issue does arise, Ditelberg wouldn’t necessarily have to recuse himself, she said.
“It could potentially create an ethics issue, but I don’t think it necessarily does,” Lofaso added.
Corporate Mergers, Restructuring
Ditelberg also distinguished himself as an expert in major corporate mergers, relocations, and restructuring, colleagues said. Those cases tend to be complex and can have thousands of job at stake, and there’s often an existing collective bargaining agreement in play.
During the Covid-19 pandemic, he helped companies comply with the WARN Act, the federal law requiring large employers to give notice of layoffs.
When Ditelberg and three other lawyers set out to write a labor relations book in 2002, Miscimarra recalled how the nominee stunned co-authors by eagerly tackling the subject of secondary boycotts, or the act of exerting indirect pressure on an employer by targeting its business partners.
“One of the worst topics to try to tackle in all of labor law is secondary boycotts,” Miscimarra, a co-author on the book, said. “Even though Josh had a day job, as did I and my other co-authors, he was willing to undertake a very challenging task.”
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