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.