The main federal labor law enforcement agency defended its actions in a controversial case last year in which it vacated a major ruling when its inspector general said that a NLRB member should have recused himself.
National Labor Relations Board Chairman John Ring told the Washington Examiner that a report released by the board Tuesday should put to rest any concerns regarding its ethics.
“For those who want to weaponize ethics and board member recusals to further an agenda, probably nothing will satisfy them. That’s truly unfortunate,” he said. “But I think at least with this review we now have the ability to respond to those attacks, and I think it will prevent any interference with the board’s processes.”
The NLRB said the controversy involved a novel situation that would not be repeated now that the board has updated its procedures. The report stated that the NLRB’s current practices for screening conflicts of interest provide “strong protections.”
Tuesday’s report followed an 18-month comprehensive review by the board of its ethics policies and procedures.
The review was brought on by a controversy last year when the NLRB’s inspector general determined that one board member, Trump appointee William Emanuel, should have recused himself from a late 2017 case called Hy-Brand. The case reversed a major board precedent determining business liability for labor rights violations at other businesses. The board vacated the Hy-Brand decision following the inspector general’s determination, a move that appeared to affirm the inspector general’s determination that Emanuel should have recused himself.
Tuesday’s NLRB report defended the board and Emanuel’s actions in the situation. It argued that the inspector general used a “novel” reading of the recusal guidelines. The NLRB and Emanuel disputed the inspector general’s determination at the time and again in Tuesday’s report. However, the board’s own in-house ethics officer agreed with the inspector general’s finding, prompting it to vacate the Hy-Brand ruling. However, the NLRB now says it wasn’t obligated to do so.
“[T]he Board has now confirmed that Member Emanuel could have disagreed with the [designated agency ethics official’s determination and not been removed from participation in the case,” the report said.
The NLRB has been under fire from Democratic lawmakers ever since the Hy-Brand case, which reversed a 2015 board decision called Browning-Ferris by the board’s then-Democratic majority. The Browning-Ferris ruling said that companies could be held liable for workplace violations by another business when they have “indirect control” over that business’s workforce, a vague standard that alarmed the business community since it could be used to make franchisor companies responsible for its franchisees. Democrats and labor groups cheered the ruling.
The board’s inspector general said that Emanuel had a conflict of interest involving his former law firm, Littler Mendelson. Emanuel has vigorously disputed the claim, noting that, while Littler Mendelson did represent people involved in Browning-Ferris, it did not represent anybody in the Hy-Brand case. The inspector general inquiry was initially sparked by inquires made by the senators.
The top Republicans on the House Education and Labor Committee, Reps. Virginia Foxx of North Carolina and Tim Wallberg of Michigan, applauded the report. “This extensive assessment will allow the agency to return its focus to its primary responsibility — implementing the National Labor Relations Act and safeguarding the rights of employees and employers alike in the workplace,” they said.
