A free-market group on Wednesday called on the National Labor Relations Board’s inspector general to investigate one of the board’s members, arguing he leaked internal information about a major board case.
The Competitive Enterprise Institute said in a letter to NLRB Inspector General David Berry that Mark Gaston Pearce, a Democratic appointee to the board, leaked the news that the NLRB, the government’s main labor enforcement agency, would vacate its decision in the Hy-Brand corporate liability case the day before it was officially announced.
CEI’s letter points to a March 1 Wall Street Journal report saying that Pearce revealed at a Feb. 25 event in Puerto Rico held by the American Bar Association that the NLRB would vacate the Hy-Brand decision the following day. CEI argues that constituted a leak of internal information.
“To protect the integrity of board proceedings in the ongoing Hy-Brand case, an investigation is required to understand the conditions, and if any violations occurred, surrounding board member Pearce’s public disclosure of board internal deliberations,” CEI said.
Trey Kovacs, CEI’s labor policy expert, said the request for a probe was intended to determine on which standards the NLRB’s inspector general hold the board’s members accountable.
“There appears to be a troublesome double-standard at the NLRB. The NLRB Inspector General Office has shown zeal for investigating Republican NLRB members but not Democratic members,” Kovacs said.
The board vacated the decision because the inspector general said another NLRB member, Trump appointee William Emanuel, had a conflict of interest. Emanuel’s former firm, Littler Mendelson, had represented a plaintiff in a 2015 case called Browning-Ferris that was reversed by the Hy-Brand ruling. The majority opinion in Hy-Brand also incorporated parts of the earlier case’s dissent. Barry argued that linked the two cases and Emanuel therefore should have recused himself from voting in Hy-Brand.
In a subsequent letter to the board, Barry said that constituted a violation of Emanuel’s ethics pledge. Democratic critics of the NLRB under the Trump administration have agreed. Sen. Elizabeth Warren, D-Mass., has called the Hy-Brand ruling “tainted.”
Emanuel has vigorously disputed that any conflict of interest existed. In a letter to Barry last week, his attorney wrote: “The fact that a new majority opinion uses language from the dissent of a prior case is not uncommon and does not make the two cases the same matter.” To say otherwise was a “radical notion” that would make NLRB cases “completely unworkable.”
Kovacs argued that under Barry’s broad standards, Pearce’s actions ought to result in a probe as well.
“The NLRB Inspector General has been expanding conflict of interest standards far enough to obstruct the Trump NLRB from functioning, yet the investigative office has not examined whether Democratic member Mark Pearce improperly disclosed confidential material about an important case. We hope by calling this problem to the attention of the Inspector General, it might spur the office to investigate potential violations.”
Business groups closely watched the Hy-Brand case because it involved the “joint employer” doctrine, when one corporation is so closely involved with a separate business that it can be held jointly responsible for workplace violations there.
For decades, the standard for joint employer was “direct control” but Browning-Ferris expanded that to the much vaguer “indirect control” — a potentially vast expansion of liability, especially for corporations that franchise their brand. Business groups lobbied the White House and Congress to undo the NLRB’s decision. The Hy-Brand ruling restored the standard to direct control, but the board’s move to vacate that decision means that Browning-Ferris standard of “indirect control” remains in effect.
