March 11, 2020

Warren, DeLauro, Pocan, Lee Call on NLRB to Scrap New Policy Allowing Board Members to Flout Federal Ethics Law

New Guidance Allows Board Members to Participate in Cases in Which They Have Conflicts of Interest

Lawmakers Concerned New Guidance May Enable Corruption and Political Influence at Agency

Letter to NLRB (PDF) | NLRB Report (PDF)

Washington, D.C. - United States Senator Elizabeth Warren (D-Mass.), along with Representatives Rosa DeLauro (D-Conn.), Chair of the House Appropriations Subcommittee on Labor, Health and Human Services, Mark Pocan (D-Wisc.) and Barbara Lee (D-Calif.), today sent a letter to John Ring, Chairman of the National Labor Relations Board (NLRB), expressing alarm about and urging the NLRB to rescind its new ethics guidance that allows NLRB Members to unilaterally decline recusal and take part in cases in which they have a conflict of interest. The lawmakers' letter follows a letter to the NLRB from the Office of Government Ethics expressing concern that the NLRB's analysis "characterize(s) ethics requirements and processes in ways that could be misconstrued" and requesting revisions to the guidance.

"Your actions erode public confidence in and compromise the integrity of the Board's decision-making," the lawmakers wrote. "The agency must abandon this dangerous, precedent-setting guidance that harms our federal ethics program and the integrity of the NLRB."

In November 2019-after the NLRB vacated its ruling in the Hy-Brand case due to a conflict of interest involving one of its Board members-the NLRB issued new ethics guidance for Board members. This new guidance makes a mockery of the basic tenets of federal ethics laws and rules: that an interested party should not adjudicate their own conflicts of interest, and that the opinions of neutral ethics experts should be binding.

"The NLRB report that forms the basis for your new 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 continued. "This belies common sense and decades of relevant legal precedent."

The lawmakers also argued that the guidance puts NLRB members and staff at risk of discipline for violating ethics rules or criminal conflicts of interest laws. 

The lawmakers urged Chairman Ring to (1) immediately rescind the guidance, (2) establish new guidance consistent with the law and relevant precedent to prevent members with conflicts of interest from taking part in agency decisions where they cannot be impartial; and (3) provide a list of any officials who have overruled an NLRB Designated Agency Ethics Official's (DAEO) recusal determination in order to participate in a matter before the Board. They asked that Chairman Ring respond to their letter by March 16, 2020.

Senator Warren has consistently fought for the enforcement of ethics rules at the NLRB, and strongly opposed efforts by the NLRB to narrow its joint employer standard in the Hy-Brand case, which was vacated after the senator raised concerns about a conflict of interest involving board member William Emanuel.

As an advocate for workers, Senator Warren introduced the Nationwide Right to Unionize Act, and is an original cosponsor of the Protecting the Right to Organize (PRO) Act. She also recently denounced the NLRB's proposed rule to deny workplace rights to graduate students employed by private universities, and has also cosponsored legislation to strengthen protections for employees under federal labor law and supported graduate student unionization efforts at schools in Massachusetts, including Harvard and Boston College.