Watching the Watcher: Labor Board Inspector’s Conduct Questioned (1)

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By Hassan A. Kanu

A government oversight agency should review the labor board inspector general’s handling of a recent ethics probe involving a Republican board member, a conservative advocacy group said March 29.

The National Right to Work Legal Defense Foundation says Inspector General David Berry divulged confidential information about board deliberations in the Hy-Brand Industrial Contractors case as part of his investigation of Member William Emanuel (R). The group is asking the Council of the Inspectors General on Integrity and Efficiency to consider whether Berry violated ethics standards by including information about the board’s decision making process in the report, which became public as a result of Bloomberg Law and other news reports.

The NLRB in Hy-Brand changed course on an Obama-era decision that made it easier to hold multiple companies jointly liable for labor violations. The board later scrapped that decision, however, after Berry said Emanuel shouldn’t have participated because of ties to another case in which his former law firm was involved.

Berry’s investigation followed allegations from lawmakers, including Sen. Elizabeth Warren (D-Mass.), that Emanuel had violated conflict-of-interest rules.

“There’s no question that there’s people on the union side and maybe people in Congress who’ll do everything they can to prevent a full board with three Trump nominees on it from reviewing these Obama-era rules,” Patrick Semmens, a NRTW vice president, told Bloomberg Law March 23. “That’s their goal and that’s a concern of ours.”

A NLRB spokeswoman declined to comment.

The foundation has for decades challenged laws that it says limit workers’ rights to choose not to join a union.

Ethics Cloud Forming

Berry said Emanuel should have sat out Hy-Brand because his former law firm—Littler Mendelson—represented a subcontractor involved in Browning-Ferris, the decision the board overturned. 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.

Emanuel through his attorney has refuted the conflicts allegations. He maintains that Hy-Brand and Browning-Ferris are two separate cases and says Browning-Ferris was no longer before the board after being appealed to a federal panel in Washington.

The right-to-work group says Berry may have also violated conduct rules because his two reports on the Emanuel investigations “were both made public without redactions of the NLRB’s internal deliberative communications.” The board’s internal decision making process is largely confidential.

Emails between board members concerning the Hy-Brand case were redacted from some versions of a February IG report.

“There were some pretty in depth descriptions of the deliberative process—e-mails being sent back and forth, one member telling another how they’re going to work on deciding” and that constitutes the deliberative process, Semmens said.

The Competitive Enterprise Institute, a free-market think tank, earlier this week asked Berry to look into whether Member Mark Gaston Pearce also violated board rules related to the Hy-Brand decision. CEI says Pearce told attorneys that a decision was coming in the case before the decision was public.

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