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Politics Undermines Ethics Rules at the National Labor Relations Board

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Republican appointees to the nation’s most powerful labor policy-making board have become the target of an ongoing campaign to sideline their voices and votes.

Ever since Republicans regained a post-election majority at the National Labor Relations Board (NLRB), Democrats on the Senate Committee for Health, Education, Labor and Pensions (HELP), particularly Senator Patty Murray and Elizabeth Warren, have been trying to use ethics rules to pressure Republican members into recusing themselves from controversial cases before the board.

Tellingly, many of those same lawmakers did not raise any ethics concerns when union attorney Craig Becker was a member of the NLRB.

Unfortunately, the newly-minted ethics allegations have done some damage. With Republican board members sidelined, the remaining Democrats on the NLRB resurrected an Obama-era ruling that had threatened to put countless franchise business owners and contractors out of business. Specifically, the remaining NLRB members abruptly torpedoed the board’s Trump-era ruling in a case called Hy-Brand that restored a decades-old standard on when two businesses (like a franchisor and franchisee) are held jointly liable for employment-related decisions.

How did that happen? In a report, NLRB Inspector General David P. Berry determined Emanuel should have recused himself from the Hy-Brand case, ostensibly because his involvement violated Executive Order 13,770, which requires Board members to not participate in “any particular matter involving specific parties that is directly and substantially related to [their] former employer.”

That opinion from Berry is highly suspect at best because there is no precedent or legal basis that supports the ethics standard Berry applies in his report. He stated Emanuel should recuse himself because the Hy-Brand deliberation was somehow a continuation of an entirely different case that Emanuel’s former law firm had litigated.

Berry’s report was particularly unfair because that same standard was not applied to the former union attorney. Craig Becker was appointed by President Obama to join the Board in April 2010 after previously serving as Associate General Counsel to the SEIU International. Yet, it appears Becker, himself, got to choose whether he must recuse himself from a case before the NLRB.

In Pomona Valley Hospital Center (2010), which involved an SEIU local union, Becker argued he did not need to recuse himself because local unions and international unions are separate and distinct legal entities. He pointed to the autonomy SEIU locals possess in that they elect their own officers, negotiate and enforce their own collective bargaining agreements and pass their own by-laws.

But these arguments belie the facts of the relationship between SEIU International and local unions. The SEIU constitution grants considerable authority to the International to exercise control over its local unions.  For example, the SEIU President has the right to appoint a trustee to take charge and control of the affairs of a Local Union. Further, all local union constitutions and bylaws must be approved by the SEIU International.

The SEIU International also collects massive amounts of money from local unions. During Becker’s two-year term on the NLRB, SEIU International’s Per Capita tax, the amount local unions must kick up to the parent union, was $290,494,145 for 2010 and $292,675,038 for 2011.

At minimum, the relationship between the SEIU International and locals would display an appearance of a conflict of interest for Craig Becker. But unlike today, Sen. Murray and other Democrats on the HELP Committee at the time had little concern over Becker’s potential conflict of interest. It also does not appear that Berry and Ketchum investigated or raised the alarm about Becker participating in cases in which SEIU locals were involved.

This recusal double standard raises several questions that Congress should investigate.

Was Becker able to make his own decision about whether to recuse from cases? If so, why? And why are Republican Board members not able to unilaterally make their recusal decisions?

Did IG Berry investigate Becker’s appearance of a conflict of interest? If not, why not? Did Berry write a report on whether Craig Becker should recuse himself from cases involving SEIU locals? If so, it should be made public.

Can Senator Murray explain why Craig Becker’s appearance of a conflict of interest did not concern her in 2010, but Republican members’ purported conflict of interests concern her so greatly today?

With so much at stake for American businesses and the people they employ, Congress should get answers to these questions now, before more damage is done.

Originally published at the Daily Caller.