Trump appointee’s conflict of interest forces labor board to toss anti-worker ruling

A Trump appointee’s conflict of interest has bitten the Trump administration’s anti-worker agenda in the ass. The National Labor Relations Board has vacated its Hy-Branddecision after the agency’s inspector general said that board member William Emanuel should not have voted due to his conflict of interest.

Hy-Brand reversed an Obama-era decision which expanded rights for workers directly employed by staffing agencies or franchise owners—under Browning-Ferris, companies couldn’t escape responsibility for the workers in their factories or warehouses or restaurants just by making sure someone else signed the paychecks. If a company determined the terms and conditions of employment, it could be treated as a joint employer. That had major implications for the huge temp worker industry and for the heavily franchised fast food industry, too.

Emanuel voted on Hy-Brand despite his former law firm having been involved in the earlier case, and that vote and that conflict of interest proved a problem:

In a report issued Feb. 9, NLRB Inspector General David Berry said Emanuel should not have cast a vote overturning Browning-Ferris. While Hy-Brand involved different companies, Berry wrote that the way the NLRB handled it amounted to a “do over” in which the new case was “merely the vehicle” to reconsider the old one—which at the time was still pending in federal court. Berry said the issue revealed “a serious and flagrant problem and/or deficiency” in the NLRB’s handling of conflict-of-interest issues.

The order vacating Hy-Brand was issued by a 3-0 vote in which Emanuel didn’t participate, according to a statement Monday from the agency, which said the move was made “in light of the determination by the board’s designated agency ethics official that member Emanuel is, and should have been, disqualified from participating in this proceeding.”

“This is, so far as I’m aware, unprecedented,” said former NLRB chair William Gould IV, a professor emeritus at Stanford’s law school. “There is no decision on a matter of such high import that has been vacated based upon a breach of conflict-of-interest rules.”

Don’t doubt the determination of Trump appointees and the Trump administration generally to find ways to hurt workers—they’re likely to look for another chance at a do-over and the House has already passed a bill overturning Browning-Ferris—but it’s nice to see rampant corruption and conflicts of interest get in Team Trump’s way for a change.

This blog was originally published at Daily Kos on February 27, 2018. Reprinted with permission.

About the Author: Laura Clawson is labor editor at DailyKos.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.