Walsh Role in Union Disputes Still Under Fire as GOP Cries Foul

Republicans plan to keep the spotlight on Labor Secretary Marty Walsh’s participation in collective bargaining fights, arguing it may be a breach of ethics rules that require the government to remain impartial.

Walsh has been at the negotiating table in several high-profile contract fights between companies and the unions representing their workers, more so than any of his modern-day predecessors. Those actions will continue to draw the attention of the new leader of the House committee with oversight of the agency, Republican Rep. Virginia Foxx (N.C.), who says the labor secretary is using his position to benefit unions, a major political ally and campaign contributor to Democrats.

However, that argument failed to gain traction last Congress when House Republicans were in the minority, and has also been brushed off by the DOL’s inspector general.

“Secretary Walsh walks picket lines and inserts himself directly into negotiations—this is a big deal. There is little precedent for this among former Labor Secretaries,” Education and the Workforce Committee Chair Foxx said in a statement. “Secretary Walsh enforces more than 180 laws and countless regulations that affect the everyday lives of millions of workers, job creators, and unions—to think his presence isn’t a tool of intimidation is ridiculous.”

The department’s independent watchdog reviewed Walsh’s visit to a picket line at a Pennsylvania Kellogg’s plant and his participation in the Massachusetts Nurses’ Union and Tenet Healthcare dispute in response to a request sent by Foxx and Rep. Rick Allen (R-Ga.) last year, and found no violations of federal ethics law, according to a letter from the OIG obtained by Bloomberg Law.

“As the Secretary of Labor, Secretary Walsh has statutory authority to intervene and otherwise involve himself in labor disputes. This authority is implicit in DOL’s establishment clause and as demonstrated throughout DOL history,” the December letter from DOL’s Inspector General Larry Turner read.

Foxx recently resubmitted three letters seeking more information from Walsh as to whether he’s received requests from any groups to participate in any labor-management activities, and whether he’s seeking an ethics clearance before participating in any labor-management activities.

Foxx said it’s been 14 months since she inquired about the issue through letters and by questioning Walsh about it directly during a hearing, but her office has yet to receive a response from the agency.

Inspector General Review

Congress has provided pathways for the executive branch to get involved in labor disputes when they pose a potential public harm or could have economic impact. The Biden administration used the Railway Labor Act to avoid a potential freight-rail shutdown ahead of the holidays last year, and in 2002 the Bush administration invoked the Taft-Hartley Act to end a West Coast Port shutdown.

But in disagreements between unions and management where there isn’t a national economic concern, the lines aren’t as clear.

An independent review conducted by the DOL’s Office of the Inspector General found that Walsh’s October 2021 visit to the Lancaster, Pa., Kellogg Co. workers’ picket line didn’t violate ethics rules requiring impartiality because he “did not have any financial interests or pre-existing personal or business relationships” with either the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union or Kellogg’s.

According to the OIG report, Walsh requested ethics advice and guidance from the DOL ethics officials prior to the Kellogg’s trip, which “considered potential ethics concerns about his planned visit to the picket line and communicated with him about that visit.”

The IG also found that Walsh’s role as a mediator in the nurses’ dispute was conducted on his personal time, and that “as Secretary of Labor, he could have engaged in the same mediation in his official capacity without raising ethics concerns under the facts presented.“

Not all agree with that conclusion, however.

“The labor secretary should not be marching the picket line, at that point you’re then endorsing one side or participating,” said Richard Painter, chief White House ethics counsel under President George W. Bush. “You need some independence.”

Walsh’s statement “I stand here with you today” to workers on the picket line during his visit to the Kellogg’s plant was “pushing the envelope,” Painter said.

Beyond influence, there are other ethical questions that these scenarios could raise, he added. “For example, if a company is a big campaign creditor, I think that’s a cause of concern.”

Painter also noted provisions of the ethical conduct rules for the executive branch that prohibit officials from misusing their position for private gain, a section not mentioned specifically in the review by the OIG.

In the inspector general’s analysis of Walsh’s participation in both the labor disputes in question, the office cites provisions of the law pertaining to an official’s “impartiality in performing official duties.”

But the letter doesn’t reference the sections of that same law that prohibit executive branch employees from using their office “for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member"—one of the concerns raised by Republicans on the House workforce committee in their inquiries and in response to the OIG’s review.

The DOL inspector general’s office directed Bloomberg Law to a one-page summaryof its findings in response to a request for comment. The DOL didn’t respond to a request for comment.

Can He or Can’t He?

Labor historians and a former government ethics official questioned whether Republicans’ concerns hold water. They also cited the law establishing the agency, which says the focus of the secretary’s position is “to foster, promote, and develop the welfare of the wage earners of the United States, to improve their working conditions, and to advance their opportunities for profitable employment.”

Walter Shaub, former director of the US Office of Government Ethics during the Obama administration, said that while the labor secretary’s visits likely don’t run afoul of any government ethics rules, that doesn’t mean “it’s not amenable to congressional oversight.”

“If the leaders that have the committee of jurisdiction over the Department of Labor feel that this isn’t fulfilling the statutory mission, then they can certainly make that case and they can conduct rigorous oversight,” said Shaub, now a senior ethics fellow at the Project On Government Oversight. Republicans may have more luck getting information and document requests answered now that they are leading the committee, he added.

Past labor secretaries have faced similar scrutiny, though the efforts to remove those officials ultimately failed.

President Woodrow Wilson’s Labor Secretary W.B. Wilson, a former United Mine Workers official, was blamed by industry groups for labor unrest in the country because of his defense of workers advocating for improved wages and working hours, according to Joseph A. McCartin, a Professor of History at Georgetown University.

McCartin also likened the complaints against Walsh to those lodged in the 1930s against Frances Perkins, the first female cabinet member and labor secretary during the Franklin Roosevelt administration, who famously visited striking steelworkers in 1933 despite being blocked from a meeting space by local authorities.

In 1939, the House Un-American Activities Committee tried to impeach her “supposedly fomenting labor unrest and shielding radicals,” McCartin said, although the effort later failed.

“I wouldn’t be surprised to see them launch their own HUAC-style investigation of Walsh’s ethics,” he said of the recent inquiries from Republicans. “If they mount such an effort, I suspect that they’ll only elevate the historical significance of Walsh’s tenure.”