A right-leaning legal nonprofit on Thursday called for an investigation of the inspector general for the National Labor Relations Board, the main federal labor law enforcement agency.
The National Right to Work Legal Defense Foundation said that NLRB’s inspector general, David Berry, may have improperly disclosed internal board deliberations in a recent report highly critical of NLRB member William Emanuel, a President Trump appointee.
“The OIG issued a report finding that an NLRB official violated the Standards of Ethical Conduct for Employees of the executive branch because he improperly disclosed nonpublic deliberative information. We believe that, by disclosing privileged deliberative, pre-decisional communications in his two reports on Member Emanuel, IG Berry has committed the same violation,” Raymond J. LaJeunesse, the foundation’s legal director, said in a letter Thursday to the Council of the Inspectors General on Integrity and Efficiency, the independent federal office that oversees the inspectors general.
The request is the second from right-leaning groups this week relating to Berry’s investigation of Emanuel. On Wednesday, the Competitive Enterprise Institute requested an investigation into NLRB member Mark Gaston Pearce, a President Barack Obama appointee, saying he improperly disclosed internal information relating to Berry’s investigation.
Both complaints present Berry as operating under a double-standard, using strict interpretations of the ethics rules when investigating Republican board members while ignoring potential violations by Democratic ones.
“Whether regarding recusals or the disclosure of internal board deliberations, Inspector General Berry appears to apply different standards to different people,” said National Right to Work Foundation President Mark Mix.
A spokesman for the NLRB declined to comment.
Berry sparked controversy in February when he delivered a report stating that Emanuel should have recused himself from a December vote in a high-profile case called Hy-Brand. Berry stated that Emanuel had a conflict of interest involving his former law firm Littler Mendelson. Based on Berry’s finding, the board took the unusual step of vacating its decision in Hy-Brand, a move that restored an Obama-era precedent that vastly expanded corporate legal liability under what is known as the “joint employer” doctrine.
Emanuel’s conflict of interest did not involve any person or group involved in the Hy-Brand case, however. Rather, Berry said that because Hy-Brand overturned a 2015 board case called Browning-Ferris and that Littler Mendelson had represented a plaintiff in that case, that tied the two cases together. “The board’s deliberation in Hy-Brand, for all intents and purposes, was a continuation of the board’s deliberative process in Browning-Ferris,” Berry said in a Feb. 9 report.
Emanuel has denied any conflict and called Berry’s determination “unprecedented and erroneous.”
The NRTW complaint says that in reports dated Feb. 9 and March 20 relating to his probe of Emanuel, Berry included details that “disclosed nonpublic internal, pre-decisional board deliberations” relating to the Hy-Brand case. Both reports were made public.
Mix added in his statement that Berry didn’t always interpret the rules so narrowly. “Despite his tenuous findings regarding recusals for Member Emanuel, just a few years ago Berry gave the green light to Obama appointee and former Service Employees International Union lawyer Craig Becker to participate in cases involving the SEIU and its affiliates.”
Berry’s probe of Emanuel was sparked by inquiries from Democratic lawmakers critical of the Hy-Brand decision. The lawmakers asked Emanuel whether he had voted in the case and whether he should have recused himself. Emanuel told the lawmakers he had voted and argued there was no conflict of interest in doing so. Democrats have seized on Berry’s report to say the Hy-Brand decision was “tainted.”
Both cases involve the question of when one business is so closely involved with a second company that the first one can be held legally liable for the second’s workplace violations, a legal doctrine called “joint employer.”
Browning-Ferris said that liability extended to when one business had “indirect control” over the other, a potentially vast expansion of the prior standard of “direct control.” The case was highly controversial and business groups lobbied Congress and the White House to reverse it. In December, the board voted 3-2 vote in the Hy-Brand case to restore the direct control standard. Emanuel voted with the majority.
