The National Labor Relations Board, the federal government’s main labor law enforcement agency, announced Friday that it would conduct a comprehensive internal review of its ethics rules to examine rules on when NLRB members should recuse themselves from decisions.
The announcement came four months after the NLRB abruptly reversed a major ruling after the board’s inspector general determined that NLRB member William Emanuel should have recused himself from voting the case. Emanuel has said he should not have had to withdraw from the case.
“Recent events have raised questions about when Board Members are to be recused from particular cases and the appropriate process for securing such recusals. 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,” said NLRB Chairman John Ring.
The announcement said the board will reevaluate all existing procedures on when recusals are required, including the “responsibilities of Agency personnel in connection with making such determinations.” Ring said the board would examine the policies of other independent federal agencies with adjudicatory powers in order to determine the best practices.
The board has been under fire from Senate Democrats regarding its practices. In a letter last month, Sens. Elizabeth Warren, D-Mass, Bernie Sanders, I-Vt., and Kirsten Gillibrand, D-N.Y., alleged that a recently announced rulemaking “appears designed to evade the ethical constraints that federal law imposes on Members in adjudications.” Ring refuted the allegations in a letter to the lawmakers.
The Democrats’ claim refers to the board’s efforts to reverse an Obama-era policy called joint employer, when one employer can be held legally liable for workplace law violations at another company it does business with, such as a subcontractor.
In a narrow 3-2 vote in December, the board decided a major case called Hy-Brand that reversed a 2015 board decision called Browning-Ferris. The 2015 ruling by the board’s then-Democrat majority said companies can 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. The current Republican-led board overruled that in December’s Hy-Brand case, limiting liability to cases of “direct control,” which had been the standard for decades before Browning-Ferris.
Business groups cheered the decision. However, in late February, the board vacated the ruling, following a report by the NLRB’s inspector general that said Emanuel had a conflict of interest in Hy-Brand involving his former law firm, Littler Mendelson.
Emanuel has vigorously disputed this, calling the inspector general’s reading of the ethic rules absurd since Littler Mendelson did not represent anybody in the Hy-Brand case. The inspector general inquiry was initially sparked by inquires made the senators.
