The Inspector General for the federal labor board was urged in a letter Wednesday to investigate an alleged leak involving a highly disputed case.
The National Labor Relations Board (NLRB) wields a considerable amount of influence in its role resolving labor dispute cases. The five-member board has also found itself at the center of some heated policy debates. The NLRB Inspector General is now being urged to investigate a member for disclosing information in one such dispute.
The Competitive Enterprise Institute (CEI), a free-market think tank, called for the investigation in a letter Wednesday. NLRB member Mark Gaston Pearce, according to the letter, improperly disclosed internal board deliberations. The letter alleges that the disclosures might violate internal agency rules.
“Information protected from disclosure under Board Rules and Regulations has been interpreted to include Board internal deliberations,” the letter states. “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.”
Pearce formerly served as chairman of the board at a time when it made major changes to labor law. Former President Barack Obama appointed him to serve on the board back in 2010. President Donald Trump entering office has meant a shift in direction for the board away from those changes.
The letter points to reports that an upcoming decision was disclosed early during a meeting at the American Bar Association. The Wall Street Journal reported that Pearce provided advance notice that the board would be vacating a major decision made last year in a case involving Hy-Brand Industrial Contractors.
The NLRB did decide to vacate that decision not long after on Feb. 26. The case centered on a highly contested update to what is known as the joint-employer standard from 2015. The Obama-era board was able to update the standard by setting a new legal precedent when ruling in a case involving Browning-Ferris Industries.
The letter also requests that the investigation determine whether Pearce received written consent from the board or chairman to reveal upcoming decisions. It also asked that the investigation focuses on whether he revealed confidential information regarding the Hy-Brand case.
The NLRB vacated the decision from last year over a possible conflict of interest involving board member William Emanuel. The NLRB Inspector General issued a report which found he should have recused himself from the decision because his former law firm represented one of the companies involved in the 2015 case.
“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,” CEI labor policy expert Trey Kovacs said in a statement provided to InsideSources. “We hope by calling this problem to the attention of the Inspector General, it might spur the office to investigate potential violations.”
The joint-employer standard is used to determine whether an employer is legally responsible for the employees of a company it contracts with. Those opposed to the update argue it is overly vague and puts employers at unnecessary legal risk. Employers take on a lot of legal burdens when they become joint-employers.
The joint-employer standard was previously determined based on whether a company had direct control over the employment policies of another business. That control could be over policies like wages, the hiring process, or scheduling. The updated standard is instead determined based on indirect control over employment policies.
The Obama-era NLRB and its supporters have argued that the change was a needed update to prevent employers from sidestepping their responsibilities. They have claimed employers have used contracting relationships to create a barrier between them and employees that should be considered their responsibility.
Republican lawmakers and the business community have adamantly opposed the updated standard since it was implemented. The update is potentially far-reaching with so many businesses contracting together. The franchise model, for example, relies on large companies contracting with smaller and independently-owned businesses.
The CEI has been among the groups who have fiercely opposed the new standard. The think tank has argued in reports that the update hurt businesses while doing little to help employees. It has also supported legislation to rein in the update and industry coalitions opposed to it.
