Senate Democrats put business lawyer John Ring, President Trump’s nominee for an open seat on the National Labor Relations Board, on notice Thursday that they would go after him for any potential conflicts of interest while he serves on the board.
Democrats at a Health, Education Labor and Pensions Committee hearing on Ring’s nomination repeatedly pointed to the labor enforcement agency’s recent move to vacate its decision in a December case called Hy-Brand involving corporate legal liability. The decision came after the NLRB’s inspector general’s office determined that board member William Emanuel had a conflict of interest and shouldn’t have voted in the case. An earlier inquiry by the Democrats prompted the inspector general’s probe.
Sen. Elizabeth Warren, D-Mass., asked for and received a promise from Ring that he would provide the committee a complete list of his law firm’s clients and recuse himself from any board decision involving those businesses. She made clear that committee Democrats would give Ring’s actions on the board the same scrutiny that they did of Emanuel, from whom they asked for and were given a similar list.
“The only reason we were able to find out [about the conflict of interest in Hy-Brand] is because we dug up the information after the vote,” Warren noted. “A big ethics cloud hangs over the NLRB.”
Ring told Warren and other Democrats he took the issue “very seriously” and would commit to avoiding any potential conflict. “My practice was to help clients avoid litigation in the first place,” he said.
The NLRB is the federal agency that oversees labor-management disputes. The president nominates the board’s five members and the Senate confirms them, but the board otherwise operates independently.
The board has one vacancy, and the other members are split evenly between Republicans and Democrats. Ring, if confirmed, would give the board a GOP majority until at least 2020.
On Monday, the NLRB vacated its December decision in Hy-Brand, a ruling that had said that businesses can be held liable for working conditions at another business – a legal concept known as “joint employer” — only when they had “direct control” over the second business’ workplace polices.
Vacating Hy-Brand restored an earlier Obama-era NLRB ruling called Browning-Ferris, which said that joint employer extended to “indirect control,” a much vaguer standard that potentially covered any company that franchises its brand. Business groups objected strongly to the change and lobbied Congress and the White House to overturn it.
Senate Republicans defended the Hy-Brand ruling, saying the board had merely restored what had been the legal standard for decades prior to the Obama administration and that direct control was the proper standard.
Sen. Lamar Alexander, R-Tenn., the committee chairman, also defended Emanuel’s actions. Alexander argued that because the board member’s former firm, Littler Mendelson, did not represent anyone in the Hy-Brand case, Emanuel had no obvious reason to recuse himself. The NLRB’s inspector general, however, determined that because the decision in Hy-Brand incorporated elements of the board’s dissent in Browning-Ferris that linked the two cases, and Littler Mendelson did represent a client in Browning-Ferris.
“It was only how the case was decided that led the IG to determine that Emanuel should have recused himself,” Alexander said. “So the board did the only thing it could have done and vacated the decision.”
The committee is scheduled to vote on Ring’s nomination next week. He is expected to be confirmed.
