December 14, 2020

Warren, DeLauro, Pocan and Lee, Blast NLRB Members Admitting They Would Defy Recusal Guidance from Ethics Officials

Three NLRB Members say federal ethics laws allow them to disregard ethics official's guidance on recusal and substitute their own "independent judgment"

William J. Emanuel Response | Marvin E. Kaplan Response | Lauren McFerran Response 

 John F. Ring Response on Behalf of Board | John F. Ring Individual Response

Washington, DC - United States Senator Elizabeth Warren (D-Mass.), a member of the Senate Health, Education, Labor and Pensions (HELP) Committee, Representatives Rosa DeLauro (D-Conn.) Chairwoman of the House Labor, Health and Human Services, and Education Appropriations Subcommittee, Mark Pocan (D-Wis.), and Barbara Lee (D-Calif.) released the following joint statement regarding answers from the majority of National Labor Relations Board (NLRB) members attesting they would defy ethics officials' recusal guidance. 

"It should alarm every worker, employer, and American that a majority of NLRB members have stated they would openly defy the guidance of ethics officials, and rely instead on their 'individual judgment' about whether their conflicts of interest necessitate recusals. Public service is a public trust, and by brazenly flouting our federal ethics program, these members have undermined public confidence in the integrity of the NLRB and in these Board members' commitment to comply with principles of ethical conduct," wrote the lawmakers. 

The lawmakers wrote to the NLRB in March, regarding concerns that the Board's November 2019 ethics report and new recusal guidance "inexplicably suggests that it is not only permissible, but preferable for a potentially-conflicted Board member, rather than a third party, to make the final determination of whether they should recuse." The lawmakers wrote that the new NLRB guidance "belies common sense and decades of relevant legal precedent," and urged the NLRB to rescind the protocol. In September, the lawmakers raised additional questions about the policy and the Board's lack of public transparency regarding revisions to the ethics report and the consequences of their new recusal process. The members of Congress also sent letters to each NLRB member requesting they commit to following the NLRB Designated Agency Ethics Official (DAEO)'s recommendation regarding recusal if advised to recuse from a case or other official matters.

In response, Chairman John F. Ring, Member William J. Emmanuel, and Member Marvin E. Kaplan  refused to commit to following the guidance of the NLRB Designated Agency Ethics Official (DAEO) regarding recusal. Chairman John Ring and Member Emmanuel both threatened that if they "disagree" with an ethics official's guidance, they would not follow it; Members Emmanuel and Kaplan both stated they believe federal ethics laws allow them to "make an independent judgment regarding (any) recusal," rather than following an ethics officials' judgment. Chairman Ring and Members Emmanuel and Kaplan only made a firm commitment to follow the inadequate ethics protocol they helped write.

In contrast, Member Lauren McFerran responded: "Based on these positions, and the oaths that I have taken as a public servant, I can unequivocally commit that I will follow the g?idance of the NLRB Designated Agency Ethics Official if I am advised to recuse myself from a case or any other official matter." Member McFerran voted against items included in the November 2019 report, including the requirement "allowing individual Board members to determine their own recusal motions."

The November 2019 NLRB report included new guidance on procedure regarding instances when a member ignores the advice of a DAEO to recuse themselves from a case due to a conflict of interest. The NLRB initiated the report after the NLRB Inspector General (IG) and DAEO found that Member William Emanuel violated his ethics pledge by participating in the Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. case, which the Board subsequently vacated because of that violation. The new guidance allows NLRB members to simply ignore the DAEO's determination and "(reach) his or her own decision" on recusal.

Writing on behalf of the Board, Chairman Ring also told the lawmakers that the Board's new ethics protocol, written in response to Member Emanuel's failure to recuse himself due to a conflict of interest, creates a mechanism "to handle recusals where there might be a legitimate disagreement over the recusal obligation." As the lawmakers wrote to the NLRB in March, "instead of strengthening the agency's ethics procedures to ensure that, in a future similar situation, Board members would not participate in any matter in which they had a conflict of interest, the agency's report created procedures that explicitly allow such conflicts."

Member Emanuel's term doesn't expire until August 27, 2021; Ring's on December 16, 2022; and Kaplan's on August 27, 2025. Member McFerran's term expires December 16, 2024. There is one vacancy on the Board.