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Investigate Labor Relations Board Confidentiality Breach

Earlier this week, the Competitive Enterprise Institute sent a request to the National Labor Relations Board Office of Inspector General to investigate NLRB member Mark Pearce for publicly disclosing confidential Board information about the status of a pending case. The case in question, Hy-Brand, involves important Board precedent related to joint employer relationships, which impact thousands of businesses across the country.

Spurring CEI’s request was an article from The Wall Street Journal that reported on February 25 that “Democratic board member Mark Pearce let slip at an American Bar Association meeting Sunday night that an important decision on the Hy-Brand case would be issued the next day.”

According to the NLRB regulations, “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.”

The current Inspector General has previously interpreted this rule to include internal deliberations of the Board. Further, an Inspector General report stated that information about the status of a case should remain confidential and “unauthorized disclosure of information either before or after the case is issued is grounds for discharge.”

The Hy-Brand case has been tainted with intrigue and multiple leaks coming from the NLRB (for about the evolving scandal at the NLRB see here and here).

It has also been reported by Bloomberg BNA and Politico that the NLRB Office of Inspector General is starting an investigation into whether member Mark Pearce violated Board rules by disclosing the status of a pending case.

If reports are accurate, this is a positive development. In the context of Freedom of Information Act requests, the government resists disclosure of records related to internal deliberations. It is argued that if government officials’ decision-making process is revealed “that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news” and undermine “the agency’s ability to function.” It is quite a double standard if a government official can publicly internal deliberations without any penalty when it suits their interests, but government can block access to agency deliberations when it does not.

Further, it is unfair to the participants in a case for a government official to publicly disclose confidential information about a pending legal matter. Anyone involved in litigation before the NLRB, or any other government agency, has a “right to complete integrity of the Board’s deliberations.”

Hopefully, the NLRB Inspector General conducts a vigorous investigation into whether Board member Mark Pearce violated NLRB regulations by publicly disclosing internal deliberations and the status of the case.