AMERICAN BAR ASSOCIATION COMMITTEE ON PRACTICE & PROCEDURE UNDER THE NLRA
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AMERICAN BAR ASSOCIATION
COMMITTEE ON PRACTICE & PROCEDURE UNDER
THE NLRA
Legal Standards and Procedures
Applicable to Recusal of NLRB Members
Yona Rozen Sang-yul Lee
AFL-CIO K&L Gates LLP
Washington, D.C. Chicago, IL
Stanley M. Gosch Rebecca J. Sivitz
Rosenblatt & Gosch PLLC Proskauer Rose LLP
Greenwood Village, CO Boston, MA
March 4, 2021I. INTRODUCTION
Yona Rozen, AFL-CIO, Washington, D.C.
II. ROLES/RESPONSIBILITIES OF AGENCY
PERSONNEL, PROCEDURES FOR IDENTIFYING
ETHICALLY- REQUIRED RECUSALS, AND
PRACTICE OF BOARD MEMBERS
Sang-yul Lee, K&L Gates LLP, Chicago, IL
III. 2019 ETHICS RECUSAL REPORT’S SIX
RECOMMENDATIONS AND BENCHMARKING, AND
GUIDANCE FROM OTHER FEDERAL AGENCIES
Rebecca J. Sivitz, Proskauer Rose LLP, Boston, MA
IV. MCFERRAN MINORITY STATEMENT AND
POTENTIAL APPROACH OF THE BIDEN BOARD
Stanley M. Gosch, Rosenblatt & Gosch, PLLC, Greenwood Village, COI. INTRODUCTION Yona Rozen, AFL-CIO, Washington, D.C.
SOURCES OF ETHICAL OBLIGATIONS
• Sources of ethical obligations for Board Members and Agency
Employees:
• Code of Federal Regulations
• Ethics Pledge of Current Administration (President Biden signed Executive
Order on January 20, 2021, which setS out details)
• NLRB Rules and Regulations
• NLRB’s Ethical Recusal Report, November 19, 2019
• Not controlling but provides insight:
• Federal Judicial Code of ConductOVERVIEW • Most of this presentation is going to focus on the NLRB’s Ethical Recusal Report, which was issued on November 19, 2019 and subsequently revised in certain respects in response to comments by the Office of Government Ethics (OGE). • On June 8, 2018, and in the wake of significant recusal and ethics issues raised following the Board’s decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (December 14, 2017), NLRB Chairman John F. Ring announced that the Board would undertake a comprehensive internal evaluation of its policies and procedures governing ethics requirements for Board member recusals. The NLRB’s Ethical Recusal Report was the end result of this undertaking.
GENERAL REQUIREMENTS
• Briefly focusing on other guidelines and regulations, there are several
requirements applicable more generally to Agency employees:
• NLRB Rules and Regulations impose certain requirements on Agency
employees both during their tenure with the Board and post-tenure.
Specifically:
• 29 C.F.R. §102.118 Present and former Board employees prohibited from producing
documents and testifying; production of witnesses' statements after direct testimony.
• §102.120 Post-employment restrictions on activities by former officers and
employees.NLRB RULES AND REGULATIONS
• Subpart P—Ex Parte Communications
• §102.126 Unauthorized communications.
• (b) No Board agent of the categories defined in §102.128, participating in a particular
proceeding as defined in that section, may:
• (i) Request any prohibited ex parte communications; or
• (ii) Make or knowingly cause to be made any prohibited ex parte communications about the
proceeding to any interested person outside this Agency relevant to the merits of the
proceeding.
• §102.127-102.133 Provide additional provisions and details.CFR AND ETHICS PLEDGE • Appointees of the Executive Branch are bound both during their terms of service and after leaving, by the Code of Federal Regulations and by a separate Ethics pledge promulgated by the current administration. • On January 20, 2021, President Biden signed an Executive Order on Ethics Commitments by Executive Branch Personnel which requires all appointees from that day forward to take a pledge. This is consistent, with some differences, with the requirements imposed by prior administrations.
BIDEN E.O. ON ETHICS
• The Biden Executive Order requires appointees to commit to the following pledge:
• “I recognize that this pledge is part of a broader ethics in government plan designed to restore
and maintain public trust in government, and I commit myself to conduct consistent with that
plan. I commit to decision-making on the merits and exclusively in the public interest, without
regard to private gain or personal benefit. I commit to conduct that upholds the independence
of law enforcement and precludes improper interference with investigative or prosecutorial
decisions of the Department of Justice. I commit to ethical choices of post-Government
employment that do not raise the appearance that I have used my Government service for
private gain, including by using confidential information acquired and relationships
established for the benefit of future clients.”
• “Accordingly, as a condition, and in consideration, of my employment in the United States
Government in a position invested with the public trust, I commit myself to the following
obligations, which I understand are binding on me and are enforceable under law . . .
• 2. Revolving Door Ban — All Appointees Entering Government. I will not for a period of 2
years from the date of my appointment participate in any particular matter involving specific
parties that is directly and substantially related to my former employer or former clients,
including regulations and contracts.”TRUMP E.O. ON ETHICS • President Trump had a similar portion of the pledge with respect to the two-year ban but withdrew his Executive Order, which also imposed post-service obligations as he left office (on January 19, 2021).
CFR GUIDANCE
• Appointees are also governed by Title 5, Code of Federal Regulations,
Part 2635 and specifically by Section 2635.101 Basic obligation of
public service:
• (b) General principles….
• (8) Employees shall act impartially and not give preferential treatment to any
private organization or individual.
• (14) Employees shall endeavor to avoid any actions creating the appearance
that they are violating the law or the ethical standards set forth in this part.
Whether particular circumstances create an appearance that the law or these
standards have been violated shall be determined from the perspective of a
reasonable person with knowledge of the relevant facts.CFR GUIDANCE, cont.
• An employee who may have questions as to their obligations can seek advice from the
Designated Agency Ethics Official (DAEO)
• 5 CFR § 2635.107 Ethics advice.
• (a) As required by § 2638.201 and § 2638.202(b) of this chapter, each agency has a designated
agency ethics official who, on the agency's behalf, is responsible for coordinating and managing the
agency's ethics program, as well as an alternate. The designated agency ethics official has authority
under § 2638.204 of this chapter to delegate certain responsibilities, including that of providing
ethics counseling regarding the application of this part, to one or more deputy ethics officials.
• (b) Employees who have questions about the application of this part or any supplemental agency
regulations to particular situations should seek advice from an agency ethics official. Disciplinary
action for violating this part or any supplemental agency regulations will not be taken against an
employee who has engaged in conduct in good faith reliance upon the advice of an agency ethics
official, provided that the employee, in seeking such advice, has made full disclosure of all relevant
circumstances. Where the employee's conduct violates a criminal statute, reliance on the advice of
an agency ethics official cannot ensure that the employee will not be prosecuted under that statute.
However, good faith reliance on the advice of an agency ethics official is a factor that may be taken
into account by the Department of Justice in the selection of cases for prosecution. Disclosures
made by an employee to an agency ethics official are not protected by an attorney-client privilege.
An agency ethics official is required by 28 U.S.C. 535 to report any information he receives
relating to a violation of the criminal code, title 18 of the United States Code.STANDARDS FOR ARTICLE III JUDGES
• Standards for Article III judges, 28 U.S.C. § 455, which are not
specifically applicable to Executive Branch appointees, but can be
instructive are the subject of ABA Rule 2.11:
• Rule 2.11: Disqualification
• (A) A judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned, including but not limited
to the following circumstances: . . .
• (6) The judge:
• (a) served as a lawyer in the matter in controversy, or was associated with a lawyer who
participated substantially as a lawyer in the matter during such association;
• (b) served in governmental employment, and in such capacity participated personally and
substantially as a lawyer or public official concerning the proceeding, or has publicly
expressed in such capacity an opinion concerning the merits of the particular matter in
controversy;
• (c) was a material witness concerning the matter; or
• (d) previously presided as a judge over the matter in another court.BRIEF HISTORY OF HY-BRAND • On February 9, 2018 the NLRB Inspector General David P. Berry issued a memorandum examining possible recusal issues in connection with the Board’s decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017) (Hy-Brand I). • The Board majority (including Member Emanuel) rejected the joint employer standard set forth in Browning-Ferris Industries of Cal.d/b/a BFI, Newby Island Recyclery, 362 NLRB No. 186 (2015)(BFI), specifically overruling BFI. • IG Berry determined that “Member Emanuel should have been recused from participation in deliberations leading to the decision to overturn Browning-Ferris.” Memorandum, Office of Inspector General, February 9, 2018, p.4.
BRIEF HISTORY OF HY-BRAND, cont. • Following IG Berry’s Memorandum of February 9, 2018, the Board, (absent Member Emanuel), on February 26, 2018, issued an Order Vacating its Decision and Order and Granting Charging Parties’ Motion for Reconsideration in Part and reversing the overruling of BFI. Hy-Brand, 366 NLRB No. 26 (2018) (HyBrand II) • Followed by Hy-Brand III and IV and ultimately the Board’s Joint Employer Rulemaking.
II. ROLES/RESPONSIBILITIES OF AGENCY
PERSONNEL, PROCEDURES FOR
IDENTIFYING ETHICALLY-REQUIRED
RECUSALS, AND PRACTICE
OF BOARD MEMBERS
Sang-yul Lee, K&L Gates LLP, Chicago, ILROLES AND RESPONSIBILITIES OF AGENCY PERSONNEL
Board Members - Generally
• All Board members are responsible for establishing and maintaining a
high ethical standard for the Agency, including complying with Ethics
regulations and the applicable Executive Order Ethics Pledge.
• The Chairman is responsible for the Agency’s compliance with government
ethics requirements. 5 C.F.R. § 2638.107.ROLES AND RESPONSIBILITIES OF AGENCY PERSONNEL
Board Members - Generally, cont.
• Board members work closely with the Board’s Designated Agency
Ethics Official (DAEO) to:
• Identify conflicts during nomination process;
• Receive individual briefings from the Ethics Office immediately following
appointment;
• Participate in annual ethics compliance training to ensure ongoing compliance
with ethical obligations; and
• Seek guidance when making a determination as to whether recusal is required.ROLES AND RESPONSIBILITIES OF AGENCY PERSONNEL
Designated Agency Ethics Official
• The DAEO has the “primary responsibility for directing the daily
activities of the agency’s ethics program and coordinating with the
Office of Government Ethics.” 5 C.F.R. § 2638.104(a). The DAEO
also can make recusal determinations and provides guidance to Board
members regarding recusal determinations on a case-by-case basis.ROLES AND RESPONSIBILITIES OF AGENCY PERSONNEL
Designated Agency Ethics Official, cont.
• DAEO has five main responsibilities mandated by 5 C.F.R. §
2638.104(c):
• Provide ethics advice and counseling to Board members and other current and
former agency employees;
• Take appropriate action to resolve conflicts of interest and the appearance of
conflicts of interest through recusals, reassignments, and other appropriate
means;
• Carry out a robust and effective ethics education for the Agency;
• Identify potential conflicts of interest through Agency’s financial disclosure
program; and
• Coordinate with the Inspector General and Department of Justice on
investigation and enforcement of criminal conflict of interest laws.ROLES AND RESPONSIBILITIES OF AGENCY PERSONNEL
Office of the Inspector General
• In contrast to the DAEO, the Office of the Inspector General (IG) does
not have authority to provide general ethics advice to Agency
employees. That responsibility is vested in the DAEO.ROLES AND RESPONSIBILITIES OF AGENCY PERSONNEL
Office of the Inspector General, cont.
• The “Inspector General has authority to conduct investigations of
suspected violations of conflict of interest laws and other government
ethics laws and regulations.” 5 C.F.R. § 2638.106.
• The IG has the general direction to make reports relating to the administration
of the programs of the applicable agency.
• The IG may provide the Office of Government Ethics (“OGE”) with notice of
referrals to the Department of Justice and may consult with the Director of
OGE or the DAEO for guidance on the application of government ethics law
and regulations.ROLES AND RESPONSIBILITIES OF AGENCY PERSONNEL Office of the Executive Secretary and Office of the Solicitor • In consultation with the DAEO, the Office of the Executive Secretary (ES Office) maintains the current Board member recusal information and updates this information, in consultation with Board members as any changes occur. • The ES Office identifies all currently pending cases from which a Board member must be recused when he or she joins the Agency, in consultation with the Agency’s Ethics Office and the Office of the Chief of Information Officer (OCIO). • The ES Office reviews all incoming cases for recusal issues prior to assignment for panel consideration. • In consultation with the DAEO and Board members, the Solicitor provides legal advice and assistance to Board members on ethical obligations, implications of those obligations for decision-making, and due process issues.
PROCEDURES FOR IDENTIFYING ETHICALLY-REQUIRED RECUSALS
Recusal Lists and General Recusal Procedures
(ES Memo 18-1 ▪ January 30, 2018)
• The Ethics Office works with each newly joined Board member to
create a Recusal List, which is reviewed and updated on an ongoing
basis. The list designates the duration of recusal and includes entities
and organizations for which Board member recusal would be required.
• The Recusal List includes entities and organizations for which the
Board member was a party to a case or represented a party to a case:
• Board member’s former employers and clients for two years prior to the date
of the Board member’s appointment.
• Financial conflict:
• Financial holdings
• Spouse’s employerPROCEDURES FOR IDENTIFYING ETHICALLY-REQUIRED RECUSALS
Recusal Lists and General Recusal Procedures
(ES Memo 18-1 ▪ January 30, 2018), cont.
• A search is then conducted by the ES Office to identify all cases
pending before the Agency where recusal may be required.
• Prior to assignment to Board staff for processing, the ES Office
reviews each case to determine whether a recusal issue exists:
• Either because a party or legal representative appears on Board member’s
Recusal List; or
• Board member’s former law firm is or was a participant in the case.PROCEDURES FOR IDENTIFYING ETHICALLY-REQUIRED RECUSALS
Recusal Lists and General Recusal Procedures
(ES Memo 18-1 ▪ January 30, 2018), cont.
• Recusal Lists are prepared by the Ethics Office and posted on an
internal Board-side website.
• The ES Office enters a designation in the Board’s electronic case
management system when a recusal issue has been identified.
• The ES Office can track all pending cases in which a recusal has been
noted. This is important for transparency, especially when panel
changes occurs.SPECIFIC PROCEDURES FOR IDENTIFYING AND DESIGNATING
BOARD MEMBER RECUSALS
(ES Memo 18-2 ▪ April 4, 2018)
• The ES Office:
• Checks all company (i.e., employer) names (including any identified d/b/a
names);
• Checks whether the law firm filed an amicus brief in the case or was a former
case participant; and
• Checks whether there are open “related cases” where member’s former law
firm is a party or legal representative of a party or case participant.
• Sets practices for additional research into potential conflicts.
• Works on review of cases received directly by the Office of the Solicitor
without going through the ES Office assignment process.SPECIFIC PROCEDURES FOR IDENTIFYING AND DESIGNATING
BOARD MEMBER RECUSALS
(ES Memo 18-2 ▪ April 4, 2018), cont.
• Ethics Office Advice Request Form for Board Staffs
• Standardized form used by members and Agency staff for seeking guidance on
recusal issues where potential recusal obligations do not fall neatly within the
typical process above.
• Members and all other employees use this form to ensure that the Ethics Office
receives all relevant information regarding the inquiry and includes a new
checklist and process.PRACTICE OF BOARD MEMBERS ACTING ON OWN
RECUSAL MOTIONS
• The Board’s application of recusal rules, pre-Hy-Brand.
• In numerous instances prior to Hy-Brand, an individual Board member
addressed potential recusal issues, and then made a decision whether to recuse
him or herself from the case. See, e.g., FedEx Home Delivery, an Operating
Division of FedEx Ground Package Systems, Inc., 361 NLRB 610, 610 fn. 9
(2014); Regency Heritage Nursing & Rehabilitation Center, 360 NLRB 794,
794 fn. 1 (2014).PRACTICE OF BOARD MEMBERS ACTING ON OWN
RECUSAL MOTIONS
One Example: Pomona Valley (2010)
• Service Employees Local 121RN (Pomona Valley Hospital Medical
Center), 355 NLRB 234 (2010).
• In this case, Board Member Becker addressed recusal contentions raised by
motion in thirteen different cases.
• Member Becker Determined his recusal was appropriate in just one case,
based on Member Becker’s submission of a joint brief on behalf of a party
and an amicus curiae.PRACTICE OF BOARD MEMBERS ACTING ON OWN
RECUSAL MOTIONS
One Example: Pomona Valley (2010), cont.
• However, all recusal issues addressed in Pomona Valley had the following in
common:
• Motions were raised prior to the time that Board decided the case;
• Member Becker had the opportunity to consult with the DAEO, but alone
determined whether recusal was appropriate;
• Member Becker’s determination was made part of the Board’s decision on
the merits; and
• Member Becker’s decisions concerning recusal in the 13 cases was
explained in a detailed published opinion setting out the relevant standards
and detailed reasons for making his determinations.III. 2019 ETHICS RECUSAL REPORT’S
SIX RECOMMENDATIONS AND
BENCHMARKING AND GUIDANCE
FROM OTHER FEDERAL AGENCIES
Rebecca J. Sivitz, Proskauer Rose LLP, Boston, MABENCHMARKING WITH 8 SIMILAR AGENCIES
• Report examined practices of bipartisan agencies with 3-5 Presidential
appointees that are confirmed by the Senate with staggered terms:
• Commodity Futures Trading Commission
• Equal Employment Opportunity Commission
• Federal Communications Commission
• Federal Trade Commission
• Merit Systems Protection Board
• National Mediation Board
• Occupational Safety and Health Review Commission
• Securities and Exchange Commission
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at pp. 17-18.BENCHMARK FINDINGS
• Found: Board's process for potential conflicts and recusals meets the
same high standards of other agencies
• Compared:
• Recusal lists procedures
• Motions to recuse
• Relationship between DAEO and Appointee
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at p. 18.BENCHMARKING: RECUSAL LISTS
• NLRB screening procedures for developing recusal lists and evaluating
appearance questions meets best practices of other agencies
• All begin creating recusal lists during nomination process:
• Engage presidential leadership to identify "Black-Letter Conflicts”
• Includes those under 18 U.S.C. § 208 (Financial Conflicts of Interest), Trump Ethics
Pledge, and C.F.R. Section 2635.502(a) (“covered relationships”)
• Use financial disclosure statement and White House vetting materials
• After confirmation:
• All benchmarked agencies give required ethics briefings and work with the appointee
to further develop recusal list
• Once initial recusal lists are final:
• Put screening in place, with gatekeeper to screen all cases before they reach members’
desks (NLRB uses ES Office)
• For closed cases involving black-letter recusals and appearance issues, work with
DAEO and ethics staff in interactive process to determine recusal obligations
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at p. 18.PARTY MOTIONS TO RECUSE AND DAEO RELATIONSHIP
Motions to Recuse:
• Like the NLRB, recusal motions are rare at other agencies, and handled
informally
• Only two agencies have formal rules for recusal (FTC and SEC)
• When motion filed at other agencies, appointee and staff work with DAEO to
evaluate and make decision
• No other agency had situation like Hy-Brand, where appointee disagreed with
DAEO
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at pp. 18-19.PARTY MOTIONS TO RECUSE AND DAEO RELATIONSHIP,
cont.
DAEO Relationship:
• Benchmarking confirms an interactive process between DAEO and Appointee is
the best practice to ensure consensus in recusal decisions
• This is NLRB practice, and will now be incorporated into written protocol
• Avoids rare instance of Hy-BrandREPORT FINDINGS AND CONCLUSIONS
• Rigorous and Well-Developed Process for Identifying Recusal Issues
Already in Place. Current NLRB practices for identifying conflicts,
screening, and obtaining DAEO advice reveal strong protections
against conflicts of interest.
• Strong processes in place for:
• Covered Relationships
• Appearance Issues
• NLRB maintains robust ethics program and strong ethical culture
• Appeals courts have never reversed NLRB decision because of
improper participation of Board member
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at p. 21.SIX REPORT RECOMMENDATIONS 1. Require Mandatory Organizational Disclosure filings for all parties before NLRB 2. Require Board member recusal lists be made public 3. Require Board member sign-off of recusal lists and any modifications 4. Incorporate DAEO Red Flag issue guidance into trainings and practice 5. Adopt written protocol on handling Party Recusal Motions 6. Adopt protocols for Board Member Recusal Determinations See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 pp. 25-39.
1. REQUIRE MANDATORY ORGANIZATIONAL DISCLOSURE
FILINGS FOR ALL PARTIES BEFORE NLRB
• Disclosures will identify a party’s parent and subsidiaries, which might
reveal a recusal issue
• Rule will parallel disclosures already required in state and federal
courts
• Will model new rule after Fed. R. Civ. P. 7.1 and Fed. R. App. P. 26.1
• Will require disclosure of any parent entity and publicly held corporation owning 10% or
more of its stock
• For unions: require identification of any parent or subsidiary
• Affirmative obligation on parties to update
• DAEO is also helping enhance recusal identification process by
improving research capabilities
• Review of recusal lists and checks of corporate conflicts all done manually
right now, which misses corporate changes and corporate name variations
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at pp. 25-39.2. REQUIRE BOARD MEMBER RECUSAL LISTS BE MADE
PUBLIC
• Now available on NLRB website
• https://www.nlrb.gov/about-nlrb/who-we-are/board/board-member-recusal-
lists
• Includes notation the lists will be updated as necessary
• Benefits of Public Lists outweighs Potential Downsides
• Benefits of Confidentiality
• Helps maintain confidentiality in Board member case assignment, which protects the
deliberative process privilege
• A public list could be misleading while it is awaiting update
• Downsides of Confidentiality
• Public list during nomination process becomes misleading because they are not later
updated
• Press leaks of recusal list updates can be incorrect and undermine public trust
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at p. 26,
https://www.nlrb.gov/about-nlrb/who-we-are/board/board-member-recusal-lists.3. REQUIRE BOARD MEMBERS TO SIGN-OFF ON RECUSAL
LISTS AND ANY MODIFICATIONS MADE THERETO
• Recusal is ultimately Board member's responsibility
• Though lists are created through collaboration with Board member, in
past Board members were not always informed of changes
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 pp. 27-28.4. INCORPORATE DAEO RED FLAG ISSUE GUIDANCE
• The DAEO provided guidance on so called “Red Flag” issues
• Red Flag issues are potential conflicts and recusal situations involving cases that
might overrule precedent
• Situations where no initial recusal issue, but a new case has similar issues
(and may overrule)--still open prior case where Board member was recused
• Ex: cases involving appearance issues, like Hy-Brand, where there are no recusal
issues at first, but later another case is implicated (Browning Ferris) and a recusal
issue is raised
• The DAEO advised that Red Flag situations should be avoided, and require
extra caution, but not necessarily a violation for a Board member to not
recuse
• NLRB agrees these situations require more attention to ethical issues, and
will incorporate them into ethics trainings
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at p. 28; Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island
Recyclery, 362 NLRB No. 186 (2015) (Browning-Ferris), pet. for review granted in part, denied in part, 911 F.3d 1195 (D.C. Cir. 2018); Hy-Brand Industrial
Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (December 14, 2017); Hy-Brand, 366 NLRB No. 26, slip op. at 1.5. ADOPT WRITTEN PROTOCOL ON HANDLING PARTY
RECUSAL MOTIONS
• NLRB will create a transparent and public protocol to govern recusal
motions
• Motions will be referred to the member whose disqualification is sought
• This is traditional NLRB practice, and practice of benchmarked agencies and Federal
Judiciary
• Will vest decision with Board member in first instance, who will work with
agency ethics officials and OGE if necessary
• Member is in best position to analyze all the complex factors
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at p. 29.6. ADOPT PROTOCOLS FOR BOARD MEMBER RECUSAL
DETERMINATIONS
• DAEO Authority:
• Can DAEO:
• Enforce a recusal of a Board member?
• Make determinations binding on other Board members (such that they would be in violation as
well for participating with disqualified member)?
• Ethics in Government Act gives no explicit authority for DAEO to enforce
determinations
• Instead gives government officer ability to challenge DAEO decision through non-
compliance, policed by employee's supervisor (the President)
• Also gives requirements for and procedural steps for DAEO, Agency Head, and OGE director
to take after challenge
• Including forcing recusal, recommended disciplinary action, notifying President, investigation, and
hearing
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at pp. 31-39.6. ADOPT PROTOCOLS FOR BOARD MEMBER RECUSAL
DETERMINATIONS, cont.
• ES Memo 19-1: Adopted written Board member disqualification
protocol
• Comprehensive, step-by-step procedure, that fully explains ramifications for
challenging DAEO determination
• Did not include mechanism for other Board members to force DAEO
compliance on another Board member, nor make DAEO binding
• NLRB believes such a rule would result in significant legal challenge, as there is no
authority for Board to prevent participation, and individual Board members are the most
informed on their decisions.
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at pp. 33-39.REPORT ACTION ITEMS
1. Solicitor's office to develop, for approval, process for all parties to file
organizational disclosure statements
2. Executive Secretary office to develop, for approval, new protocol for
public disclosure of recusal lists
3. Executive Secretary to develop, for approval, protocol for member sign off
on recusal lists
4. Acknowledgment and incorporation into training of DAEO Red Flags,
including creating a checklist identifying the situations
5. Solicitors Office to develop, for approval, procedure to handle recusal
motions, which allows members to determine own recusal (with guidance)
6. Implement Board member recusal protocol
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020.IV. MCFERRAN MINORITY STATEMENT
AND POTENTIAL APPROACH
OF THE BIDEN BOARD
Stanley M. Gosch, Rosenblatt & Gosch, PLLC
Greenwood Village, COMCFERRAN’S STATEMENT ON THE RECUSAL REPORT
• Rejects report process
• Chairman’s Report is not a joint product of the full Board
• The 3 Republican members simply voted to delegate then-Chairman Ring to carry out
a review of the Board’s recusal process
• McFerran abstained from that vote
• Her only input was this “statement” that she was allowed to append to the
end of then-Chairman Ring’s recommendations
• Stands by the decision in Hy-Brand, 366 NLRB No. 26 (2018) (HyBrand II)
• The Board granted the motion for recusal because the DAEO “ha[d] determined that
Member Emanuel [wa]s, and should have been, disqualified from participating in this
proceeding.”
See Statement appended to National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at
pp. 1-4.MCFERRAN’S PARTIAL SUPPORT OF RECOMMENDATIONS McFerran supports three of the final recommendations of the Report: 1. Supports organizational disclosure statement requirement for parties appearing before the Board (Recommendation 1) 2. Supports public disclosure of the Ethics Office Board member recusal lists (Recommendation 2) 3. Supports incorporating the “Red Flags” checklist from the Board’s DAEO into Board training (Recommendation 4)
6. ADOPT PROTOCOLS FOR BOARD MEMBER RECUSAL
DETERMINATIONS
• DAEO Authority:
• Can DAEO:
• Enforce a recusal of a Board member?
• Make determinations binding on other Board members (such that they would be in violation as
well for participating with disqualified member)?
• Ethics in Government Act gives no explicit authority for DAEO to enforce
determinations
• Instead gives government officer ability to challenge DAEO decision through non-
compliance, policed by employee's supervisor (the President)
• Also gives requirements for and procedural steps for DAEO, Agency Head, and OGE director
to take after challenge
• Including forcing recusal, recommended disciplinary action, notifying President, investigation, and
hearing
See National Labor Relations Board's Ethics Recusal Report, updated January 9, 2020 at pp. 31-39.MCFERRAN’S CRITIQUES • The Chairman’s Report could undermine the independence and integrity of the DAEO and IG • Board members should not be able to unilaterally determine their own recusal from a case
MCFERRAN MINORITY STATEMENT AND POTENTIAL
APPROACH OF THE BIDEN BOARD, cont.
• McFerran was highly critical of the remaining recommendations in Ring’s
Report.
• She feels that preserving the independence and integrity of the DAEO and IG
are crucial.
• Rather than permitting a Board member to essentially unilaterally determine
whether he or she agrees to recuse himself or herself from a case, McFerran
would allow the Board – as a body – to protect the integrity of its decisions by
removing an otherwise recalcitrant member from consideration of a given
case.
• McFerran would allow the Board as a whole to defer to disqualification
decisions from the DAEO.MCFERRAN’S RECOMMENDATIONS
• Allow Board to Remove implicated member from consideration of a given
case
• Protects integrity of its decisions
• Allow Board as a whole to defer to disqualification decisions from the DAEO
• Should disqualify a member if contrary to DAEO decision or a clear violation of ethics
rules or laws
• If Party Recusal Motion:
• Board’s ultimate decision should reflect and explain the ruling on that motion in sufficient
detail to permit judicial review
• Follow FTC Process (16 C.F.R. § 4.17)
• Complaint initially referred to accused Board member, who could choose to recuse
himself or herself
• If Board member refuses to recuse, the Board considers the evidence and makes final
determinationPOTENTIAL CHANGES UNDER THE BIDEN
ADMINISTRATION’S NLRB
• Recusal likely to change significantly
• Current Chair Lauren McFerran was only Democratic Board member
when Ethics Recusal Report was released
• She was not a fan of the report’s process
• Disagreed with half of its recommendations
• McFerran is now the Board Chair, and the Republican majority is
likely to only last until late August
• Seems likely recusal rules will change in the coming monthsYou can also read
