Trump NLRB Appointee Behind Major Anti-Union Ruling Accused of Corruption

Bruce Vail January 23, 2018

Senate Committee on Health, Education, Labor and Pensions (HELP) Nomination Hearing for Deputy Secretary of Labor and Members of the National Labor Relations Board, William Emanuel. (Senator Elizabeth Warren/YouTube screen shot)

An anti-union pol­i­cy deci­sion from Pres­i­dent Don­ald Trump’s Nation­al Labor Rela­tions Board (NLRB) appointees appears to be taint­ed by a vio­la­tion of ethics stan­dards, and Sen. Eliz­a­beth War­ren (D‑Mass.) is join­ing unions in demand­ing answers.

The Trump pol­i­cy deci­sion came on Decem­ber 14 when the NLRB reversed an Oba­ma-era rul­ing in the Brown­ing-Fer­ris case — a pro-work­er deci­sion from 2015 that has been loud­ly decried by busi­ness lob­by­ists and con­ser­v­a­tive Repub­li­cans. The case turned on the issue of how the NLRB would define the term joint employ­er” in union orga­niz­ing cas­es — and was broad­ly viewed as a blow to McDonald’s and oth­er fast food com­pa­nies that exploit the fran­chise busi­ness mod­el as a tool to help defeat unions. Last month, the five-mem­ber NLRB vot­ed 3 – 2 in the Hy-Brand Indus­tri­al Con­trac­tors case to reverse Brown­ing-Fer­ris, with recent Trump appointee William J. Emanuel pro­vid­ing the mar­gin of vic­to­ry for the anti-union forces.

Emanuel now stands accused by War­ren and oth­ers of vio­lat­ing eth­i­cal stan­dards by vot­ing on the case even though he appears to have a con­flict of inter­est. The con­flict is said to arise from Emanuel’s for­mer sta­tus as part own­er (or share­hold­er”) of the labor law firm Lit­tler Mendel­son, a busi­ness that spe­cial­izes in rep­re­sent­ing employ­ers against their own work­ers. The firm rep­re­sent­ed a par­ty in Brown­ing-Fer­ris, so stan­dard gov­ern­ment ethics rules indi­cate Emanuel should have recused him­self from vot­ing, accord­ing to critics.

It looks real­ly bad,” says Susan Garea, a Cal­i­for­nia attor­ney rep­re­sent­ing Team­sters Local 350. Emanuel’s vio­la­tion of ethics rules taints the NLRB vote, she tells In These Times, so the deci­sion in Hy-Brand Indus­tri­al should be void­ed, and the valid­i­ty of Brown­ing-Fer­ris eval­u­at­ed in an atmos­phere free of con­flicts of inter­est. Garea detailed her charges in a Jan. 4 court fil­ing in the U.S. Court of Appeals for the Dis­trict of Colum­bia Cir­cuit. It’s clear Emanuel should not par­tic­i­pate,” in any vote on Brown­ing-Fer­ris, she says

The Team­sters have been fight­ing the case for years. In 2013, Local 350 tried to orga­nize work­ers at a recy­cling cen­ter in Mil­pi­tas, Calif., that was owned and oper­at­ed by Brown­ing-Fer­ris. But the union found itself blocked by a legal strat­e­gy that assert­ed the work­ers were actu­al­ly employ­ees of an out­side staffing agency, Garea explains. The union fought the case before the NLRB, pre­vailed with the Board’s 2015 pro-union deci­sion, and has been work­ing ever since to fend off legal attempts to over­turn the rul­ing. Garea, of the law firm Bee­son, Tay­er & Bod­ine, pro­claims the case is far from over and the union is intent on block­ing Emanuel’s improp­er action.

War­ren entered the pic­ture when Trump nom­i­nat­ed Emanuel for the NLRB in mid 2017. She opposed him from the start, argu­ing that a lawyer who has rep­re­sent­ed only boss­es in a 40-year-plus legal career was a bad choice for the NLRB, which is sup­posed to be a fair arbiter of labor dis­putes. She demand­ed a com­mit­ment from Emanuel to recuse him­self from NLRB cas­es involv­ing a long list of for­mer clients (which he agreed to do) and vot­ed against him in the final con­fir­ma­tion on the Sen­ate floor.

Emanuel is the oppo­site of what Sen­a­tor War­ren would like to see in an NLRB mem­ber. His con­flicts of inter­est are a mile long, and he spent decades fight­ing against work­ers’ efforts to join togeth­er and stand up for them­selves,” Warren’s Deputy Press Sec­re­tary Saloni Shar­ma tells In These Times.

The Sen­ate floor vote on Emanuel reflect­ed the deep par­ty-line divide over Trump’s nom­i­na­tions to the NLRB. All the Demo­c­ra­t­ic Par­ty sen­a­tors present vot­ed against Emanuel, and all the Repub­li­cans vot­ed for him. AFL-CIO chief lob­by­ist Bill Samuel tells In These Times that Trump’s appoint­ments to gov­ern­ment labor posts have been strong­ly anti-union, but Emanuel is one of the most extreme. We didn’t make a fight about Emanuel. We just didn’t have the votes,” he says. But we are very much behind Sen. War­ren in her efforts to hold them [the NLRB mem­bers] accountable.”

In a let­ter dat­ed Dec. 21, War­ren posed ques­tions to Emanuel rais­ing con­cerns about poten­tial mis­con­duct in the Hy-Brand vote. Giv­en that your for­mer part­ners at Lit­tler Mendel­son P.C. rep­re­sent­ed a par­ty in [Brown­ing-Fer­ris] before the board, did you recuse your­self from the board’s deci­sion to move to remand the [Brown­ing-Fer­ris] case from the U.S. Court of Appeals for the D.C. Cir­cuit back to the board? If not, why not?” she writes. The let­ter, also signed by sev­er­al oth­er top Con­gres­sion­al Democ­rats, requests that Emanuel com­mit to addi­tion­al recusals from pend­ing NLRB cas­es in the future.

An unsigned email mes­sage stat­ed that Emanuel respect­ful­ly declines” a tele­phone inter­view to dis­cuss the War­ren alle­ga­tions. Mes­sages left direct­ly with Emanuel were not returned. 

Sen. War­ren and oth­er con­gres­sion­al Democ­rats are await­ing a for­mal response to the ques­tions before decid­ing on the next step against Emanuel. Mean­while, the White House is expect­ed to announce it is nom­i­nat­ing Wash­ing­ton, D.C., man­age­ment-side attor­ney John Ring to fill an open seat on the five-mem­ber NLRB, as for­mer Chair­man Philip Miscimarra’s term on the Board expired just days after the Hy-Brand decision.

Bruce Vail is a Bal­ti­more-based free­lance writer with decades of expe­ri­ence cov­er­ing labor and busi­ness sto­ries for news­pa­pers, mag­a­zines and new media. He was a reporter for Bloomberg BNA’s Dai­ly Labor Report, cov­er­ing col­lec­tive bar­gain­ing issues in a wide range of indus­tries, and a mar­itime indus­try reporter and edi­tor for the Jour­nal of Com­merce, serv­ing both in the newspaper’s New York City head­quar­ters and in the Wash­ing­ton, D.C. bureau.
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