September 24, 2020

Warren, DeLauro, Pocan, Lee Press NLRB on Members' Conflicts of Interest, Seek Clarity and Transparency of the Board's Ethics Recusal Requirements

NLRB's November 2019 report creates a legally dubious roadmap for Members to ignore a recusal determination, rather than reinforcing NLRB Members' requirement to comply with ethics officials' determinations; Key NLRB policy changes to November 2019 Ethics Recusal Report have not been posted on NLRB website or made available to the public

Text of Letter to NLRB (PDF)

Text of Letters to NLRB Board Members (PDF)

Washington, DC - United States Senator Elizabeth Warren (D-Mass.), U.S House Subcommittee on Labor, Health, and Human Services, Education, and Related Agencies Chairwoman Rosa DeLauro (D-Conn.), Congressman Mark Pocan (D-Wis.), and Congresswoman Barbara Lee (D-Calif.), sent a follow-up letter to the National Labor Relations Board (NLRB) raising new questions about the Board's ethics policies, and requesting that the Board provide clarity and transparency regarding revisions to agency ethics policies contained in a November 2019 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 follow the NLRB Designated Agency Ethics Official (DAEO)'s recommendation regarding recusal. 

In November 2019, the NLRB released their Ethics Recusal Report, which Senator Warren, Representatives DeLauro, Pocan, and Lee called "a twisted legal analysis that ignores basic tenets of ethics law and public integrity," effectively allowing NLRB Members to unilaterally decide to ignore an ethics officer's recusal recommendation and take part in cases in which they have a conflict of interest. Though, the lawmakers requested that the Board rescind the guidance and establish new guidance consistent with the law, NLRB has not done so, leaving a fundamentally flawed set of ethics rules in place.

"The NLRB has been plagued with ethics problems since you became Chairman, and your response raises new questions about your commitment to an open and transparent ethics process that will let the NLRB make decisions that are not clouded by questions about the Board's ethics and integrity," the lawmakers wrote to NLRB Chairman John Ring

On December 19, 2020, the Office of Government Ethics (OGE) raised concerns that "portions of the [NLRB ethics] Report characterize ethics requirements and processes in ways that could be misconstrued" and requested that the NLRB "clarify various portions of the Report." On January 9, 2020, the NLRB replied to OGE with edits to provisions of the report that OGE flagged. In conversations with OGE, the lawmakers learned that OGE came to an understanding with the NLRB that the edits to the report sent to OGE in January 2020 addressed OGE concerns - but those edits and a final version of the report and guidance appear to not be available to the public in any form. Months after NLRB's response to OGE, on April 7, 2020, the NLRB responded to the lawmakers' March 2020 letter and cited uncorrected report language. NLRB's error has yet to be corrected, and their April 2020 letter to the lawmakers is still posted on their website. 

"This is troubling. The public has a right to know about the ethics rules under which NLRB officials are operating, and the process that was followed to put them in place - but even the most interested, diligent member of the public who scrutinizes the documents you have made available online would be left to guess what your new policy is," the lawmakers continued in their letter to the NLRB Chairman. "This failure to provide clarity means that several changes that you appear to have made to the ethics policy are not presented clearly or in final form."

In separate letters to each of the NLRB Board Members, the lawmakers asked whether each will uphold their commitment as a public official to abide by our nation's ethics laws, and take steps to ensure that the American public can have faith in the integrity of the NLRB. The letters follow an investigation by the NLRB inspector general (IG) finding that NLRB Member William Emanuel's participation in the December 2017 Hy-Brand case "exposes a serious and flagrant problem and/or deficiency" with the Board's decision-making process, and that Member Emanuel should have recused himself rather than voting on the case.

"Rather than undertaking a good-faith effort to restore public confidence in the Board's integrity, the NLRB's ethics report is a thinly veiled effort to post-hoc validate Member Emanuel's insistence he should have been permitted to participate in the Hy-Brand decision, contrary to the NLRB DAEO's determination," wrote the lawmakers to the NLRB Board, including to Member Emanuel. "The NLRB's new guidance changes the rules to appease Member Emanuel's objections, creating a legally dubious roadmap for Members to ignore a recusal determination, rather than reinforcing NLRB Members' requirement to comply with ethics officials' determinations."

Citing the Standards of Ethical Conduct for Employees of the Executive Branch, the lawmakers concluded in each of their letters: "The public belief in the integrity of the government is a critical regulatory goal, which is codified in requirements for government employees to 'avoid any actions creating the appearance that they are violating the law or the ethical standards set forth' in federal ethics regulations. That means that even the appearance of a conflict of interest must be avoided in order to ensure that 'every citizen can have complete confidence in the integrity of the Federal Government.'"

Senator Warren, Representatives DeLauro, Pocan, and Lee have requested responses to each of their letters no later than October 8, 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. Most recently in March 2020, Senator Warren, Representatives DeLauro, Pocan, Lee called on NLRB to scrap its new policy allowing board members to flout federal ethics law.

Senator Warren introduced the Anti-Corruption and Public Integrity Act that would require most executive branch officials to recuse themselves from all issues that might financially benefit themselves or a previous employer or client from the preceding 4 years. It would also strengthen federal ethics enforcement with new investigative and disciplinary powers, including civil and administrative penalties.