Short-Handed NLRB Confirms Power to Decide Cases After Recusals

Jan. 10, 2020, 8:31 PM

The National Labor Relations Board showed that it will still decide cases even when a recusal drops the current three-member panel down to just two voting members.

NLRB Members Marvin Kaplan and William Emanuel on Jan. 9 summarily rejected HMH Hospitals Corp.’s motion to toss some of the unfair labor practice allegations against it based on new board precedent. Chairman John Ring is on the panel but didn’t participate in the decision, according to the ruling.

The NLRB’s power to issue rulings with a pair of voting members—which is buttressed by U.S. Supreme Court precedent—takes on particular importance in light of the five-seat board being down to just three members. Ring and Emanuel had long careers at management-side firms prior to joining the board, which can be a source of conflicts of interest necessitating recusal.

The NLRB issued an ethics report Nov. 19 outlining new recusal protocols allowing members to “insist” on participating in cases even if the agency’s ethics officer or the federal government’s ethics watchdog determine they should withdraw. But the board said it will amend those rules after the head of the Office of Government Ethics expressed concerns about parts of the recusal policy.

Ring’s former firm, Morgan Lewis & Bockius, represents HMH, which faces allegations that it unlawfully denied site access to union activists. The Trump administration’s ethics policy requires Ring to withdraw from cases in which his former firm represents a party. That two-year pledge expires in April 2020.

HMH’s attorney didn’t respond to requests for comment.

In its Jan. 9 order, the NLRB said the Supreme Court “left undisturbed” its practice of two members deciding a case when a third member is recused.

The high court said in its 2010 New Process Steel v. NLRB opinion that a two-member board couldn’t decide cases, but that doesn’t affect the authority of a panel that drops from three to two participating members. The NLRB had just two members from January 2008 to March 2010.

Past boards have decided cases with two participating members due to recusals. For example, a Republican board member didn’t vote in the now-defunct 2012 ruling in D.R. Horton, which said mandatory arbitration agreements violate federal labor law.

The case is S. Ocean Med. Ctr., Jersey Shore Univ. Med. Ctr., Palisades Med. Ctr., and the Harborage, a Division of HMH Hosps., N.L.R.B., Case 22-CA-223734, Order 1/9/20.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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