October 21, 2019

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NLRB Chairman Refuses Lawmakers’ Request for Ethics Documents

National Labor Relations Board Chairman John Ring has again informed Democratic leaders of the U.S. House of Representatives Committee on Education and Labor that the Agency will not release documents they requested related to NLRB members’ recusals from Board cases.

On August 15, 2019, Bobby Scott, D-Va., Chairman of the House Committee on Education and Labor, and Frederica Wilson, D-Fla., Chairwoman of the House Subcommittee on Health, Education, Labor and Pensions, again requested documents related to Board members’ conflicts of interest. The document requests originally were made on May 6, 2019, and were responded to on May 23, June 5 and 21. Ring did not give the Committee all of the requested documents, however.

In their August 15, 2019, request, the Committee again asked for: memoranda from the NLRB’s ethics official (who makes determinations on members’ recusals from certain cases); updated lists of cases in which Board members could not participate; documents relating to the “appropriateness” of members’ participation in a certain matter; and an update on the ethics review announced by the Board following its withdrawal of the ­Hy-Brand decision.

Scott’s and Wilson’s requests for NLRB ethics documents is part of House Democrats’ inquiry into the Board’s ethics standards following the NLRB’s withdrawal of its Hy-Brand decision after the Board’s inspector general determined that Member William Emanuel should have recused himself from the case due to his former firm’s representation of a party in a related case. The decision sought to overturn the Board’s Obama-era decision in Browning-Ferris, which substantially expanded the Board’s standard for determining joint-employer status.

In his September 4, 2019, response, Ring again declined to release the requested documents for several reasons. For example, he noted that the documents were “pre-decisional” and their production would violate Board norms that promote candor when evaluating potential conflicts of interest. Ring also maintained the Board’s “longstanding position” that the requested documents contained “pre-decisional” and “privileged” communications among Board members and NLRB staff that cannot be released outside the NLRB. Ring further noted that disclosure of recusal lists could “reasonably be expected to interfere with the Board’s law enforcement function” because parties may be able to claim, as a result, a denial of due process when members recuse themselves from the affected party’s case.

Although the lawmakers argued that memoranda drafted by the NLRB’s ethics official reflect his final “decisions,” Ring clarified that many “decisions” are made during the processing of a case before the members make their decision on the merits of the case. These “decisions” include the Board’s executive secretary’s determinations as to Board members’ case assignments, members’ assignments of cases to their staff attorneys, and recusal decisions. Ring reaffirmed to the Committee leaders his commitment “to transparency and to cooperating with [the Committee] regarding . . . [its] oversight responsibilities.”

As to the lawmakers’ request for an update on the Agency’s internal ethics review, Ring stated that the Agency plans to complete it this fall.

Jackson Lewis P.C. © 2019

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Sabrina L. Brown is an Associate in the Cleveland, Ohio, office of Jackson Lewis P.C. Ms. Brown represents employers in a variety of labor and employment-related matters, including employment discrimination, retaliation, and harassment claims; wage and hour disputes; and claims involving breaches of non-competition, non-solicitation, and confidentiality agreements.

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