Labor Board’s Ethics Review Will Examine Recusal Rules (1)

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By Hassan A. Kanu and Chris Opfer

The National Labor Relations Board is launching a comprehensive review of its ethics and member recusal rules, the board announced June 8.

“Recent events have raised questions about when Board Members are to be recused from particular cases and the appropriate process for securing such recusals,” NLRB Chairman John Ring said in a statement accompanying the announcement. “We are going to look at how recusal determinations are made to ensure not only that we uphold the Board’s strong ethical culture, but also to ensure each Board Member’s right to participate in cases is protected in the future.”

The move comes as the board looks to resolve conflict-of-interest questions surrounding its decisions in a pair of high-profile cases. Ring told Bloomberg Law June 8 that the review is meant to clarify the situations in which members must recuse themselves from cases and to determine who decides whether recusal is required.

The issue stems from the conclusion of the NLRB’s inspector general and designated ethics officer that Member William Emanuel (R) violated an ethics pledge by participating in one of those cases. The board in a December ruling in Hy-Brand Industrial Contractors scrapped an expansive approach to joint employment established in the 2015 Browning-Ferris Industries case. Emanuel’s former law firm, Littler Mendelson, represents a staffing agency in Browning-Ferris, which is still on appeal.

The December ruling resulted in the case being withdrawn and left intact a key labor policy from the Obama administration: the expansion of “joint employer” liability for associated businesses. The Obama-era rule generally makes it easier to hold one business liable for labor violations committed against workers at a different business, like staffing and contractor companies and franchisees. The board recently announced it will address the joint employer issue via a proposed regulation.

Will White House Weigh In?

Presidential appointees are obligated to avoid potential or actual conflicts of interests when carrying out their duties. Those obligations stem from federal laws and regulations—as well as executive orders, which are typically referred to as the White House ethics pledge.

The board members and most of the agency attorneys are employment specialists. The board wants to draw on the expertise of government ethics lawyers and other agencies that have also grappled with similar conflicts issues, Ring said.

“We haven’t decided how exactly we’re going to do it,” Ring said. “So everything’s on the table in terms of who we reach out to—if the White House can be helpful, we’ll ask them, if the Office of Government Ethics can be helpful, we’ll ask them.”

The board in the announcement said it would also seek outside guidance, including by reviewing how other independent agencies approach the same issues.

Ring Attempts to Clarify ‘Job Creation’ Line

Ring was giving the keynote speech at a labor law conference at the New York University School of Law when the announcement came.

The chairman elaborated on comments he made June 7 about being attracted to the post—which he’s held for about two months—because of President Donald Trump’s economic message.

An attempt to give more consideration to the interests of employers and business owners doesn’t mean “decisions should be viewed under a litmus test of whether it creates jobs,” he said.

“What I’m saying is that we need to restore some balance at the NLRB,” Ring said. “Without consideration of both labor and management’s interests, there’s a risk the board creates regulations that impact job creation and job growth.”

One NLRB employee said after Ring’s speech that there’s “a concern that the implication is that we should enforce the act less,” referring to the National Labor Relations Act.

Ring rejected the implication and reiterated that he’s focused on achieving a balance. “Jobs should not be a dirty word,” he said.

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