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Today, the NLRB issued a long-awaited report on how it will handle recusal issues going forward. The report was sparked by the Board’s Hy-brand decision, issued in 2017, which overturned the highly controversial Browning-Ferris decision from 2015. Browning-Ferris had established a new Board standard for determining joint employment status based on indirect control or merely the potential to control terms and conditions of employment.
In the wake of Hy-brand, supporters of the looser joint employer test argued that Board Member Bill Emanuel should have recused himself from the case because his former law firm had been a party in the original Browning-Ferris decision. Three members of the Board subsequently vacated Hy-Brand, which itself was a controversial move. Certain members of Congress have continued to raise recusal questions around other issues the NLRB is considering even after Hy-Brand, leading Board Chairman John Ring to announce the launching of a thorough review of recusal procedures.
The NLRB’s report identifies specific ethical obligations of Board members and staff, and it outlines the authority of the NLRB’s Designated Agency Ethics Officer (DAEO). Notably, the report also “benchmarked” the Board’s recusal practices with other agencies around the government to ensure that the standards used at the Board are in alignment with those agencies.
The report found that, overall, the Board has a strong process in place for handling ethics issues. However, it found certain gaps and identifies specific policies for addressing those. Specifically:
The Board will now require organizational disclosure certification by all parties litigating in front of the Board, as is used in federal and state courts. This is meant to ensure that all parties understand exactly what entities are involved in a case, since the organizational structures of many businesses and other entities can be complicated. The statement will require identification of any parent entity and any publicly held corporation that owns 10% or more of its stock or require the employer to state that there is no such corporation. This type of disclosure will also apply to unions, which will have to identify any parent and/or subsidiary entity.
The Board also decided to make recusal lists publicly available and to post the most-current recusal lists on the NLRB’s public website. Board members themselves will have to sign-off on those recusal lists, as well as any modifications. This is meant to ensure that Board members are fully aware of all recusals. Decisions to recuse also will now require a written explanation by the Board member so that there is a record of why a decision was taken.
In addition, the DAEO has developed a list of potential “red flag” situations that could raise unique ethical concerns, and those red flag situations will be incorporated into the Board’s regular ethics training.
The report further clarifies that motions to recuse a member should be referred to that member, so that he or she can raise any objections, which is consistent with the practice of the federal judiciary.
Finally, the report recommends the establishment of a procedure to challenge a DAEO decision on recusal if a member disagrees with that decision. The report acknowledges that doing so may raise risks for the Board member in question, but it clarifies that DAEO decisions are not self-enforcing.
On balance, the report creates important safeguards, clarifies procedures and authority around recusals, and should ensure a strong ethical culture at the NLRB. One hopes this will satisfy critics of the current NLRB.