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Labor Board to Revise Recusal Rules to Address Ethics Concerns

Jan. 10, 2020, 11:45 AM

The National Labor Relations Board is revising its new conflict-of-interest rules shortly after unveiling them because of concerns raised by the Trump ethics chief.

The NLRB published an ethics report Nov. 19 outlining new recusal protocols—the result of a nearly two-year comprehensive review of ethics policies undertaken after a Republican board member participated in a case in which he was later found to have had a conflict.

The report was released along with an announcement that the NLRB’s ethics program is strong and fully compliant. But in a letter to the board, Emory Rounds, head of the Office of Government Ethics, said he was “very concerned” about certain portions.

In its report, the board concluded that members can “insist” on participating in cases even if the agency’s designated ethics officer found that there’s a conflict of interest, and laid out a process where OGE would then adjudicate the matter and take corrective action. Shortly afterward, Rounds asked Ring to clarify that OGE doesn’t actually have a role refereeing situations where a member insists on ruling in a case despite an ethics officers’ determination that there’s a conflict.

The NLRB now is working to amend certain provisions in the report to “avoid characterizing ethics procedures in a way that may be misconstrued,” Board Chairman John Ring said in a Jan. 9 letter obtained by Bloomberg Law.

Ring told Congress during his nomination process that he would avoid putting “another cloud over the NLRB,” although the agency has been dogged with further accusations from Democrats and unions of unethical conduct during his tenure, and for most of President Donald Trump’s administration. The quarrel with the Trump-appointed ethics head likely means the board will continue to face criticism from Democrats and worker advocates about its adherence to ethics rules.

Ethics Office officials didn’t immediately respond to a request for comment.

Two Sides of Dispute

“If you read between the lines, what Ring is really saying is that board members can ignore ethics officials and do whatever they want,” and there will be no consequences, Walter Shaub, former OGE head during President Barack Obama’s administration, said Dec. 3 in reference to the ethics report.

Management-side lawyers have defended Ring’s stewardship of the agency, saying Democrats and unions are trying to block policy changes they disagree with by citing illusory ethics violations.

“I suppose if OGE wants clarification that they don’t have a formal adjudication mechanism for those situations then it makes sense,” said Roger King, senior counsel for the HR Policy Association. Nonetheless, “OGE should have been more forthcoming in their letter” in terms of what corrections are needed.

Ring said in his Jan. 9 letter that OGE declined the NLRB’s request for the watchdog agency to review the relevant sections of the report in writing before it was issued, calling that decision “regrettable.”

“Unfortunately, your letter provides no specific guidance, other than to ask us to remove provisions suggesting OGE will adjudicate disagreements between Board members and” the NLRB’s designated ethics official, the chairman said, noting his attached revisions.

“We will assume these revisions address your concerns unless we hear otherwise,” Ring wrote.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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