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National Labor Relations Board Responds to Democrats' Invented Ethics Concerns

Sen. Elizabeth Warren (D-MA) is using the bully pulpit in an effort to ensure recusal decisions at the National Labor Relations Board (NLRB) are based on politics and her desired policy outcomes. On September 17, Sen. Warren sent a letter to the NLRB warning that it must “fully comply with federal ethics regulations during reconsideration” of whether employees may use an employer’s email system for union organizing purposes. Her letter calls for the recusal of Republican Board member William Emanuel in the case Rio All-Suites Hotel.

But, as I explained in a previous post, “Sen. Warren’s analysis of the ethics standard show either a misunderstanding of the rules or a blatant attempt to obstruct the NLRB from taking legitimate action.” Her calls for recusal rely on the suspect and unprecedented opinion of NLRB Inspector General David Berry. This effort to cast doubt over and obstruct the NLRB by Democrats is a transparent political ploy for which the objective is to achieve their preferred policy outcomes.

On September 24, NLRB Chairman John Ring wrote a letter in response to Sen. Warren that attempts to assuage Democrats’ concerns and reiterate that politics has no place in determining when NLRB members must recuse themselves. It also appears that Chairman Ring believes that the recusal process has been properly followed in Rio All-Suites Hotel and Board member William Emanuel should be allowed to participate.

Ring recognizes that maintaining the “highest ethical standards” is one of his “primary responsibilities” as chairman. To achieve this goal, the recusal process must be followed and not sullied by politics. The letter briefly summarizes how recusal issues are handled at the NLRB:

Board member recusals are to be handled by the NLRB’s Designated Agency Ethics Officer (DAEO). Our DAEO has the responsibility of providing the Board with independent and objective advice regarding these matters, and often does so in consultation with the Office of Government Ethics. As I have stated, nothing about recusal decisions should be based on politics — that is, on a desired outcome in a particular case or on the position some may anticipate that a particular Board Member might take in the case.

I can assure you that the Board has followed and will continue to follow our prescribed government ethics requirements in connection with the Rio All-Suites Hotel case. This is true both with respect to the request for briefing that was issued with Member Emanuel's participation on August 1, 2018, and with respect to any subsequent action in that case.

Unfortunately, there have been concerns that politics have crept into the recusal process at the NLRB. Chairman Ring, in a previous letter to the Senate Health, Education, Labor, and Pensions (HELP) Committee, raised concerns that Democratic staffers at the HELP may have improperly interfered with the recusal process in a case pending before the NLRB. The Competitive Enterprise Institute has submitted a FOIA request seeking the communications from HELP staffers to the NLRB.

There also appears to be a double standard at the NLRB when it comes to recusal determinations. During the Obama administration, former SEIU attorney Craig Becker served on the NLRB. In contrast to today, it seems he was able to decide for himself whether to recuse himself from a decision that involved an SEIU local union. Further, Democratic Senators serving on the HELP Committee at the time did not give the impression that enforcing ethics standards was a top priority.

It is good news that Chairman John Ring appears unfazed by Democrats’ political stunt and will continue to properly administer the National Labor Relations Act.

However, Congress should use its investigatory tools to find answers to important questions.

Did Democratic staffers on the HELP Committee improperly interfere with the NLRB recusal process in a pending case? Congress should request all communications between HELP staffers and NLRB staff that make recusal decisions.

Did anyone at the NLRB investigate Craig Becker’s potential conflict of interest? If not, why not? Congress should request all documents related to Becker and his potential conflict of interest issues. This will bring to light whether there is a double standard at the NLRB when making recusal determinations.