Labor Board Inspector Clears Member Accused of Leaking

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By Hassan A. Kanu

National Labor Relations Board member Mark Gaston Pearce (D) didn’t violate ethics or other rules by allegedly leaking information about a closely watched case during a conference in Puerto Rico, the board’s inspector general said in a report obtained by Bloomberg Law.

Pearce didn’t specifically discuss how the board was going to rule on a pending motion to reconsider a lightning rod “joint employer” case, NLRB Inspector General David Berry wrote in a summary of his investigative report. Berry said Pearce’s “statements were simply too vague to be of practical use or benefit to anyone given the overall context of the conversations.”

Pearce allegedly let slip at the American Bar Association event that a “big decision” in the Hy-BrandIndustrial Contractors case was coming the next day. Witnesses reported that Pearce had actually said “something was going to be coming down,” and stated that attendees should “watch the news,” the inspector general said.

A Republican majority board used the Hy-Brand case to overturn Obama-era precedent making it easier to force multiple companies to collectively bargain with one group of workers and hold businesses liable for the same set of labor violations. The board later withdrew that decision—the development Pearce was alleged to have disclosed—because of conflicts of interest concerns about Member William Emanuel’s (R) participation in the case.

The board’s approach to the controversial joint employer issue could have a significant impact on workers and businesses in a wide range of industries. Critics say the board’s expansion of joint employer liability leaves businesses in franchise, staffing, and other arrangements on the hook for workers they don’t actually control. Unions and worker advocates say it gives employees a seat at the table with the companies that are actually setting the terms and conditions of their jobs.

Berry interviewed Jack Toner, a former NLRB executive secretary whose comments in a Wall Street Journal report formed part of the basis of the allegation against Pearce. Toner said he didn’t recall Pearce saying a “decision” was coming out. He added that Members “often say that something is in the works without getting into the details,” according to Berry’s report.

No Violation, Report Says

Berry’s investigation started after an attorney representing Hy-Brand called attention to the report in a motion asking the board to reconsider the case. The free-market think tank, Competitive Enterprise Institute, also asked the inspector general to investigate Pearce for allegedly tipping the board’s hand. Both cited the Wall Street Journal report.

“We’re glad they investigated the case and it seems” the allegation of wrongdoing “wasn’t corroborated by the witnesses that the NLRB talked to,” CEI policy analyst Trey Kovacs told Bloomberg Law May 10.

“I’m certainly not accusing anyone” of doing this, but it would “probably be wise” for all board employees to “be a little more tight-lipped” about internal deliberations regarding case decisions or agency operations, Kovacs said.

Berry noted “due process " issues based on Pearce’s discussion of a “live matter at an ABA meeting.” He recommended the board consult with its designated ethics official if “there are any due process concerns” remaining.

The inspector general noted that his office wouldn’t normally provide a summary of his report when there was no misconduct found, but said he transmitted it to the Board and Congress for transparency reasons, given “the widespread knowledge of the allegation in the labor law community.”

Pearce didn’t immediately respond to a Bloomberg Law request for comment.

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