Due Process Concerns Remain in National Labor Relations Board Ethics Inquiry

On March 28, 2018, the Competitive Enterprise Institute sent a letter to the National Labor Relations Board Office of Inspector General to investigate NLRB member Mark Gaston Pearce for improperly disclosing internal Board deliberations, as a Wall Street Journal report alleged:

Democratic board member Mark Pearce let slip at an American Bar Association meeting Sunday night [February 25, 2018] that an important decision on the Hy-Brand case would be issued the next day.

As stated in CEI’s letter requesting an investigation, such disclosure of information appears to violate Board regulation 29 C.F.R. 102.118(a), which states that “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.”

However, yesterday, Bloomberg BNA reported that the Inspector General John Berry completed the investigation and cleared Pearce. According to the his report, interviews with select attendees at the American Bar Association meeting did not corroborate The Wall Street Journal’s reporting that Pearce divulged that a Hy-Brand decision was forthcoming. Since the The Wall Street Journal did not attribute the information about Pearce to a specific source, however, it is unknown whether the newspaper’s source was interviewed by Inspector General Berry.

An excerpt from Berry’s report also indicates member Pearce may not be completely off the hook:

Nevertheless, there may or may not be certain due process issues with a Member discussing a current or live matter at an ABA meeting. It is, however, our long-standing practice not to engage in a due process analysis. Our raising the issue of due process at this point is to ensure that our analysis and determinations are limited solely to whether a rule or a regulation was violated. If there are any due process concerns we recommend that the Board consult with the Designated Agency Ethics Official.

This admission that the member Pearce may have upset due process in the Hy-Brand case may lend credence to a March 9, 2018, motion for reconsideration of the NLRB’s order to vacate the Hy-Brand decision. This motion seeks to reinstate the NLRB’s Hy-Brand decision related to joint employer relationships, which was vacated due a questionable inspector general report that determined NLRB member Bill Emanuel violated ethics rules.

As I previously wrote, the motion for reconsideration argues that:

Leaks from the Inspector General’s investigation to the press and members of the Senate denies respondents’ due process. Inspector General investigations must keep privileged or confidential information private. The Inspector General failed in this respect. During the pending investigation, investigative journalism publication ProPublica reported leaked documents from the Inspector General report. Further, Sen. Patty Murray (D-WA) even admitted knowledge of the investigation during a congressional hearing. The motion states that investigation leaks “interfered with Respondents’ right to a fair hearing on the facts on law, rather than political considerations and Congressional pressures.”

Hopefully, the Board takes up Mr. Berry on his suggestion that if there are any due process concerns that the agency consults with the Designated Agency Ethics Official.