by Kevin Mooney
Allegations that a member of the National Labor Relations Board improperly disclosed internal deliberations should be investigated, a Washington labor policy analyst says in a letter to the board’s inspector general.
Board member Mark Gaston Pearce “allegedly discussed information from documents involving internal Board deliberations” at a meeting of the American Bar Association last month, Competitive Enterprise Institute analyst Trey Kovacs tells the inspector general in the letter.
Pearce “reportedly provided advance notice of an NLRB decision to issue an order to vacate the Board’s decision in Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co.,” Kovacs writes in the letter to Inspector General David Berry, dated Wednesday.
The board’s pro-union actions demonstrate how it operates as though Barack Obama were still president, and not Donald Trump, the Competitive Enterprise Institute analyst says.
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“There appears to be a troublesome double standard at the NLRB,” Kovacs told The Daily Signal in an email. “The NLRB Inspector General Office has shown zeal for investigating Republican NLRB members, but not Democratic members.”
Just after noon Wednesday, a spokesman for the NLRB said the agency would have no comment on the Kovacs letter or how it would respond to the request for an investigation.
Pearce, a Democrat, was chairman of the five-member NLRB from August 2011 until two days after Trump’s inauguration. Named to the board by Obama, he was confirmed by the Senate in June 2010. His second term expires Aug. 27.
Marvin Kaplan, a Republican, is the current chairman of the board, which he joined only last August. Trump named him chairman just before Christmas.
Founded in 1984, the Competitive Enterprise Institute, or CEI, is a libertarian think tank in Washington.
CEI’s Kovacs has argued that Congress needs to step in with a “permanent legislative fix” of the NLRB’s “overly broad and vague” joint employment standards that undermine both entrepreneurs and workers.
Berry “has been expanding conflict-of-interest standards far enough to obstruct [Trump’s] NLRB from functioning,” Kovacs said in his email to The Daily Signal, “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,” Kovacs said.
The board, which has been locked in a 2-2 split between Republican and Democrat members, is supposed to be filled out by the arrival of Republican John Ring, a Trump appointee who has yet to be confirmed by the full Senate. A committee approved Ring in a 12-11 vote along party lines March 14.
The two other board members are Democrat Lauren McFerran, an Obama appointee who joined in December 2014, and Republican William Emanuel, a Trump appointee who joined last September.
Historically, the NLRB majority is made up of members of the current president’s party.
The Hy-Brand case concerns the concept of joint employment liability, which the National Labor Relations Board has used to determine when two companies are jointly liable for employment-related policies.
The Wall Street Journal reported March 1 that Pearce told attendees of a Feb. 25 meeting of the American Bar Association in Puerto Rico that an important decision in Hy-Brand would come the next day, Feb. 26.
As it turns out, the National Labor Relations Board on Feb. 26 did in fact move to vacate its previous ruling in Hy-Brand. By vacating its ruling from December, board critics charge, it restored joint employment liability to a more burdensome standard for business in operation during the Obama administration.
In his letter to the NLRB’s inspector general, Kovacs cites a board regulation that says “no present or former employee or specially designated agent of the Agency will produce or present any files, documents, reports, memoranda, or records of the Board or of the General Counsel … without the written consent of the Board or the Chairman of the Board.”
An investigation is needed to “protect the integrity” of the board’s upcoming proceedings in the Hy-Brand case, Kovacs says in his letter. He suggests the inspector general focus on these key questions:
- “Whether Board member Pearce received written consent from the Board … or the Chairman of the Board to reveal the forthcoming NLRB action?”
- “Who Board member Pearce revealed confidential information to regarding the Hy-Brand case in his speech at the ABA meeting?”
- “Did Board member Pearce improperly disclose to the public other confidential documents or information related to the Board’s decision to vacate the Hy-Brand decision?”
Kovacs also points out that information protected under the board’s rules and regulations has been interpreted to include internal deliberations, according to an inspector general’s report.
A motion for reconsideration of the board’s decision to vacate its Hy-Brand ruling was filed March 9.
Kovacs details some of the main arguments in the motion in a post that takes a critical view of the board’s decision.
The motion, for instance, argues that the board “usurped authority under the National Labor Relations Act,” and that it made its decision in a manner that violates the public notice requirements of the Sunshine Act.
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Kevin Mooney is an investigative reporter for The Daily Signal. Send an email to Kevin.
Ken McIntyre contributed to this report.
