National Labor Relations Board Chairman John Ring warned this week that recent actions by Senate Democrats create the appearance that they are trying to “improperly influence” a major case the board is trying resolve involving McDonald’s Corp.
The Democrats on the Senate Health, Education, Labor and Pensions Committee have been asking whether Ring and another NLRB boardmember, William Emanuel, would recuse themselves from the case. In a letter to leaders of that committee, Ring accused Democrats of using pressure tactics against his board.
“It is distressing, however, that the Committee’s minority staff would reach out to the [NLRB’s Inspector General’s Office] to discuss a pending recusal motion where there is currently no IG involvement,” Ring wrote in his Tuesday letter to Sens. Lamar Alexander, R-Tenn., and Patty Murray, D-Wash.
“Given the public statements made by the Democratic members of the HELP Committee prejudging the recusal motion, the minority staff’s contact with the IG … has the unfortunate appearance of an attempt to improperly influence the outcome of the pending recusal motion,” he wrote.
The letter may not have gone over well with lawmakers. A Senate Republican staffer who requested anonymity said they were “naturally concerned” by any suggestion that congressional staff should not talk to any agency inspector general. In a joint letter in response to Ring Wednesday, Alexander and Murray defended as “common practice” having their staffs contact IGs.
“Chairman Alexander has long supported … strong congressional oversight of all federal agencies,” the staffer said. They added, however, that Alexander agreed with the current board’s effort to dispose of the McDonald’s case, and said it represented an overreach that could hurt the entire franchising industry.
The McDonald’s case, first launched in 2014 when the NLRB had a Democratic majority, is one of the board’s most controversial actions in recent years. It was based on a complaint by Fight for $15, a group funded by the Service Employees International Union, which has long sought to organize the McDonald’s chain and boost minimum wages there. The union argued that the corporation was responsible for labor violations by local restaurants under a doctrine called “joint employer.”
The NLRB agreed and pursued the case. Traditional joint employership required one company to have “direct control” over another company’s policies in order to be liable for its actions. In the McDonald’s case, the board broadened it to the much vaguer “indirect control,” a standard that could potentially make a corporation liable for anyone it franchises its brand to.
That would be a big boost to unions attempting organize franchise workers since it would let them target the parent corporation rather than organizing individual business. The Chamber of Commerce and other business groups loudly opposed the move and lobbied Congress and the White House to reverse it.
The NLRB, which now has a Republican majority under Trump, has sought to pull the plug on the case. In December, it issued a ruling in a case called Hy-Brand that re-established the prior “direct control” standard. However the board abruptly vacated the Hy-Brand ruling earlier this year when a probe by its inspector general determined that Emanuel, the other NLRB board member, should have recused himself due to a conflict of interest involving his previous employer, the law firm Littler Mendelson.
Emanuel has disputed that any conflict existed, calling the IG report an “absurd” reading of the law since Littler Mendelson did not represent anyone in the Hy-Brand case. It instead represented a client in an earlier case that the Hy-Brand ruling would have affected.
As a result, McDonald’s case remains unresolved. A proposed settlement in the case was rejected by a administrative law judge in July. The board has appealed that ruling and the SEIU-backed group that filed the initial complaint said in a legal filing that both Emanuel and Ring are obligated to recuse themselves from the appeal. Removing both from the case would eliminate the board’s Republican majority and thus end the efforts to end the case.
In Tuesday’s letter, Ring said the Democrats’ inquiries to board’s ethic officers on whether Ring and Emanuel would recuse themselves crossed the line and appeared to be intended to create pressure for them to do so. Ring said he would follow the board’s usual ethics process when recusal requests are are made.
“[P]romptly after the Charging Parties filed their motion — and before the Committee contacted the IG — both Member Emanuel and I requested the Agency’s (ethics officer) to review the Charging Parties’ motion, evaluate our recusal obligations in the McDonald’s matter, and provide an opinion. We will be guided by that opinion, not by political considerations,” he wrote.
A representative for the Senate Democrats could not be reached for comment.
