But the latest salvo in the campaign to disrupt Board operations is particularly troublesome. In a letter to the Chairman and Ranking Member of the Senate Health, Education, Labor and Pensions (HELP) Committee, NLRB Chairman John Ring raised concerns about efforts by Democratic staffers at the HELP committee to interfere in a case before the board.
A portion of the letter states:
I understand that the minority staff of the Senate Committee on Health, Education, Labor, and Pensions (HELP) has contacted the NLRB’s Inspector General (IG) regarding the pending recusal motion, even though there is no active IG investigation or audit involving the matter. For whatever reason, the IG then discussed the call with the NLRB's Designated Agency Ethics Officer (DAEO), who has the responsibility to provide the Board's members independent and objective advice regarding recusal matters.
Unquestionably, the HELP Committee has important oversight functions over the NLRB, and we pledge full compliance with those responsibilities. It is distressing, however, that the Committee's minority staff would reach out to the IG to discuss a pending recusal motion where there is currently no IG involvement. As the Committee staff knows, the NLRB has a Congressional Affairs Office, which typically handles inquiries from Congress. And the Committee staff certainly knows that the NLRB (like every other federal agency) has a Designated Agency Ethics Official (DAEO) whose duties include advising the Board on recusal matters. 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, who then discussed the outreach with the DAEO, has the unfortunate appearance of an attempt to improperly influence the outcome of the pending recusal motion.
Regardless of the reason for the contact, it is imperative that the pending recusal motion in the McDonald's proceeding—just like every other recusal matter— be handled under the prescribed government ethics rules and procedures first. Those procedures include a process for individual Board members to secure an opinion from the Board's DAEO reflecting her independent, objective review of particular recusal issues in light of the applicable legal standards. There can be no doubt about the DAEO's impartiality, and there should be no doubt about the fairness of the Board's recusal procedures. There is no room for politicization of this process.
One would imagine that members of the HELP committee would take these concerns seriously. It is disturbing development if HELP committee staffers are putting pressure on the NLRB Inspector General David Berry to influence the Designated Agency Ethics Officer (DAEO) Lori Ketchum in her determinations on whether NLRB members should or should not recuse themselves from a case.
Yet, the opposite occurred. Chairman Lamar Alexander (R-TN) and Ranking Member Patty Murray (D-WA) responded with a joint letter that read in part:
We always appreciate the responsiveness of all Inspector General offices to such requests, and would be very concerned if such requests, whether made by the majority, the minority, or jointly, did not result in the prompt and useful exchange of information.
The letter went on that “it is common practice for our staffs to be in communication with Inspectors General.”
This response misses the forest for the trees. Chairman Ring makes the point that the HELP committee “unquestionably” has oversight functions over the NLRB and Ring pledges to comply with these responsibilities.
There is not an inherent problem with HELP committee staffers requesting information from the IG. However, there is a problem if the communications between HELP staffers and IG lead to the IG improperly influencing the DEAO and her ability to make an independent judgement on whether members should recuse themselves from cases.
Since the Senate HELP committee is taking the stance that they are unconcerned with this potential meddling, the Competitive Enterprise Institute has submitted a document request under the Freedom of Information Act seeking:
- Communications between HELP committee staffers and IG David Berry
- Communications between HELP committee staffers and DAEO Lori Ketchum
- Communications between Berry and Ketchum.
- Communications between Democrat HELP Committee members and Berry
It is crucial for these communications to see the light of day. The public deserves to know whether Democrat HELP committee staffers are attempting to improperly influence matters at the NLRB. And if the NLRB inspector general is overreaching his authority and meddling with determinations of the DAEO.