Senators Grill NLRB Nominee About Potential Conflicts of Interest

Nominee says, ‘I don’t want to put another cloud over the NLRB’

By Allen Smith, J.D. Mar 5, 2018

​Senate Democrats want to make sure that National Labor Relations Board (NLRB) nominee John Ring doesn't commit the same apparent ethics violation that NLRB member William Emanuel did. The NLRB inspector general is investigating Emanuel following the inspector general's finding that Emanuel should not have participated in a case last December because of conflicts of interest, according to Sen. Patty Murray, D-Wash.

Murray and Sen. Elizabeth Warren, D-Mass., noted the corporate ties of Ring, an attorney with Morgan Lewis in Washington, D.C., during a Senate Health, Education, Labor and Pensions Committee nomination hearing March 1. They asked whether he could be an objective board member.

Republican members expressed confidence in Ring's ability to serve on the board.

Democrats Wary of Corporate Background

"The last thing our nation's labor board needs is another champion for those at the top," Murray told Ring at the hearing. "You've spent your years representing companies, not workers. … You've encouraged the board to undermine long-established rights."

She said Ring had been "aiding corporate management in skirting worker protections" for years and expressed doubt that he would be able to uphold the core mission of the National Labor Relations Act (NLRA).

[SHRM members-only HR Q&A: What is the function of the NLRA?]

"You have a background that is very similar to Mr. Emanuel," Warren told Ring. She described Ring's law firm as "anti-union" and said the committee needs to ensure that Ring can serve without ethical conflicts.

Ring replied that he would abide by the NLRB's ethics rules.

Warren noted that Emanuel provided the same assurance and asked if Ring understood he was not to participate in any matter where Morgan Lewis represented a party.

Ring said he understood.

Warren asked him to provide the members of the committee with two lists of cases in which his firm is involved: one of cases pending before the NLRB and another of cases decided by the NLRB but on appeal.

Ring said he would and added, "I do not want to be in the position that member Emanuel finds himself in, and I don't want to put another cloud over the NLRB."

The only reason Congress knows about Emanuel's apparent ethics violation in the 2017 Hy-Brand decision is because it found out about the information after he was confirmed, Warren said. "It would be nothing short of negligent at this point for this committee to let it come to that again," she remarked.

In the Hy-Brand ruling, Emanuel cast the deciding vote to do away with the standard for "joint employer" articulated in Browning-Ferris. Hy-Brand required one entity to have direct control over another for there to be joint employment, while Browning-Ferris required only indirect control. But the NLRB inspector general found that Emanuel was too closely involved in the Hy-Brand case to vote because his old law firm participated in the litigation in Browning-Ferris. In light of the inspector general's finding, the NLRB vacated Hy-Brand and revived the Browning-Ferris standard.

Warren asked for the two lists of cases in which Ring's firm is involved before the committee votes on his nomination—a vote that Politico reported is scheduled for March 7.

Republican Support

However, Sen. Lamar Alexander, R-Tenn., said, "Under the previous administration, the board too often acted as an advocate rather than as an umpire." He said Emanuel and NLRB Chair Marvin Kaplan have "helped restore some balance to the labor board," such as through the NLRB's invitation of comments on whether to keep or modify the "ambush" election rule.

Alexander voiced his support for Ring's nomination and said he hoped Ring would continue the current board's trend in returning balance to the administration of labor laws.

Ring has experience with labor as well as management, having worked for the Teamsters while he was in college and law school, Alexander noted.

"My almost seven years at the Teamsters gave me a unique perspective, and I have never forgotten what I learned," Ring said. "I saw labor-management relations, collective bargaining and union representations from that side. I also came to know a number of good, committed union officials. It was my completely accidental experience at the Teamsters that sparked my interest in labor law."

He also said, "My almost 30 years of practice has involved representing corporate clients on all issues arising under the NLRA. … I have come to know many employers working hard to provide good jobs for their employees and fully committed to meeting all of their legal obligations. Thus, much of my work has involved counseling clients on NLRA compliance and avoiding NLRB litigation."

Reflecting general support for Ring among Republicans on the committee, Sen. Orrin Hatch, R-Utah, said, "You're very well-qualified, and I intend to support you."


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