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By Chris Opfer
A free-market think tank wants the National Labor Relations Board’s chief investigator to look into whether Member Mark Gaston Pearce (D) gave a group of lawyers a heads-up on a recent surprise decision.
The Competitive Enterprise Institute this morning asked NLRB Inspector General David Berry to investigate Pearce for allegedly telling attorneys at an American Bar Association event that a “big decision” was coming in the Hy-Brand Industrial Contractors case. Pearce may have violated a federal nondisclosure rule by tipping his hand one day before the NLRB unexpectedly decided to scrap a previous decision in the Hy-Brand case, CEI policy analyst Trey Kovacs says, citing a Wall Street Journal report.
“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,” Kovacs wrote.
The request comes amid an unexpected busy stretch for Berry. The inspector general recently issued two reports finding that Member William Emanuel (R) violated an ethics pledge by participating in an earlier decision in Hy-Brand and then weighing in on Browning-Ferris Industries, two high-charged cases involving joint employer liability for affiliated businesses.
Ethics questions have left uncertain the board’s current view of joint employment, an issue that has been at the center of heated debate since the NLRB in Browning-Ferris made it easier to tag businesses as employers of each other’s workers for unionizing purposes. Companies that use franchise, staffing, and contract arrangements have said wider liability makes them responsible for workers they don’t control. Unions and worker advocates say a broader approach cuts through complicated arrangements to give employees a voice with those actually deciding the terms and conditions of their jobs.
“The Inspector General’s office cannot confirm or deny the existence of an investigation,” an NLRB spokeswoman told Bloomberg Law.
A Republican-majority board in December used Hy-Brand to overturn the 2015 Browning-Ferris decision and return to a more limited “direct-control” standard for joint employer liability.
Berry later said Emanuel should have sat out the case because his former law firm—Littler Mendelson—represented a subcontractor involved in Browning-Ferris. Emanuel shouldn’t have joined the board in urging the agency’s general counsel to ask an appeals court to drop its consideration of the Browning-Ferris case, the inspector general also said.
“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,” Kovacs told Bloomberg Law in a statement.
Pearce, NLRB Chairman Marvin Kaplan (R), and Member Lauren McFerran (D) decided to scrap the Hy-Brand decision shortly after Berry’s first report became public. Lawyers for Hy-Brand said the board violated federal law by keeping Emanuel out of the loop on the move. They also accused Pearce of spilling the beans about the decision before it was made public and before Emanuel learned that the board had vacated the earlier ruling.
CEI is a “non-profit public policy organization dedicated to advancing the principles of limited government, free enterprise, and individual liberty,” the group says on its website.
Pearce, who is in his second term on the board, was chairman when the NLRB decided the Browning-Ferris case. That decision is currently before a federal appeals court in Washington.
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