On September 17, 2018, Senator Elizabeth Warren (D) of Massachusetts released a letter to National Labor Relations Board (NLRB) Chairman John Ring urging NLRB member William Emanuel to recuse himself from a case. The Senator was joined by Senators Kirsten Gillibrand (NY-D), Corey Booker (NJ-D), Mazie Hirono (HI-D) and Tammy Baldwin (WI-D).

This is not the first time Democrats have argued that NLRB member Emanuel should recuse himself. In fact, Senator Warren and other Democrats (including Senator Murray, Senator Hassan, Congressman Scott, Congressman Sablan and Congressman Norcross) wrote to Emanuel in December and February accusing him of an ethics violation for ruling in the Joint Employer case, Hy-Brand.

Just a couple of months before in December, the NLRB with a new Republican majority, had overturned the Browning-Ferris case and reinstated the definition of joint employer as an employer with “direct control” in Hy-Brand.

On February 9, 2018, NLRB Inspector General David Berry released a report agreeing with the Democrat Senators that Member Emanuel should have recused himself. Berry said that Emanuel should have recused himself because his former employer, Littler Mendelson, a law firm with over 1500 lawyer and 75 offices, represented one of the parties in the 2015 Browning-Ferris case.

As a result of Berry’s report, the NLRB vacated its decision in Hy-Brand. The definition of joint employer still remains the broad definition that the NLRB ruled for in 2015 when President Obama was President and the Democrats had control of the NLRB. This expanded definition hurts workers and allows more lawsuits against businesses.

The current case, Caesars Entertainment Corp., is also a case where President Trump’s NLRB is reexamining a case, Purple Communications Inc., that a Democrat NLRB ruled on in 2014. The Obama-era ruling allowed workers to use their employer’s email systems to form unions. In the current case, a Las Vegas casino run by Caesars Entertainment Corp. banned its employees from discussing working conditions using its computer systems.

Democrats have also urged Emanuel and Ring to recuse themselves in the case involving the “Fight for $15” movement and McDonald’s. The group “Fight for $15” had complained in 2014 about labor violations by local restaurants and wanted McDonald’s to be held responsible as a joint employer.

Now that Democrats no longer have the majority on the NLRB, they seem to be using recusal as a way to undermine the Republican majority.