National Labor Relations Board Chairman John Ring has again informed Democratic leaders of the U.S. House of Representatives Committee on Education and Labor that the Agency will not release documents they requested related to NLRB members’ recusals from Board cases.

On August 15, 2019, Bobby Scott, D-Va., Chairman of the House Committee on Education and Labor, and Frederica Wilson, D-Fla., Chairwoman of the House Subcommittee on Health, Education, Labor and Pensions, again requested documents related to Board members’ conflicts of interest. The document requests originally were made on May 6, 2019, and were responded to on May 23, June 5 and 21. Ring did not give the Committee all of the requested documents, however.

In their August 15, 2019, request, the Committee again asked for: memoranda from the NLRB’s ethics official (who makes determinations on members’ recusals from certain cases); updated lists of cases in which Board members could not participate; documents relating to the “appropriateness” of members’ participation in a certain matter; and an update on the ethics review announced by the Board following its withdrawal of the ­Hy-Brand decision.

Scott’s and Wilson’s requests for NLRB ethics documents is part of House Democrats’ inquiry into the Board’s ethics standards following the NLRB’s withdrawal of its Hy-Brand decision after the Board’s inspector general determined that Member William Emanuel should have recused himself from the case due to his former firm’s representation of a party in a related case. The decision sought to overturn the Board’s Obama-era decision in Browning-Ferris, which substantially expanded the Board’s standard for determining joint-employer status.

In his September 4, 2019, response, Ring again declined to release the requested documents for several reasons. For example, he noted that the documents were “pre-decisional” and their production would violate Board norms that promote candor when evaluating potential conflicts of interest. Ring also maintained the Board’s “longstanding position” that the requested documents contained “pre-decisional” and “privileged” communications among Board members and NLRB staff that cannot be released outside the NLRB. Ring further noted that disclosure of recusal lists could “reasonably be expected to interfere with the Board’s law enforcement function” because parties may be able to claim, as a result, a denial of due process when members recuse themselves from the affected party’s case.

Although the lawmakers argued that memoranda drafted by the NLRB’s ethics official reflect his final “decisions,” Ring clarified that many “decisions” are made during the processing of a case before the members make their decision on the merits of the case. These “decisions” include the Board’s executive secretary’s determinations as to Board members’ case assignments, members’ assignments of cases to their staff attorneys, and recusal decisions. Ring reaffirmed to the Committee leaders his commitment “to transparency and to cooperating with [the Committee] regarding . . . [its] oversight responsibilities.”

As to the lawmakers’ request for an update on the Agency’s internal ethics review, Ring stated that the Agency plans to complete it this fall.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.