Bias Complaints Spur Probe of Labor Board Watchdog

The Equal Employment Opportunity Commission is reviewing three discrimination complaints against federal labor board Inspector General David Berry, and two members of Congress are asking questions about the watchdog’s behavior on the job, according to investigatory reports and letters between board officials and lawmakers obtained by Bloomberg Law.

Berry, who is white, faces race and sex bias complaints from three National Labor Relations Board senior executives who are people of color. The executives say Berry “bullied” them and members of their staff, including by yelling, using profanity, questioning their decisionmaking and authority, making a veiled threat of termination in one instance and snatching a computer from an employee in another. The executives—two women and one man, who serve in administration and operations roles—say Berry does not treat white, male employees in the same way, according to the investigatory reports.

Berry, the labor board, and the EEOC declined requests for comment when contacted by Bloomberg Law. Berry, during interviews with investigators and in correspondence with the oversight body for federal inspectors general, rejected claims that he targeted or was abusive toward colleagues based on their race or sex, according to the investigatory reports. He also questioned whether the EEOC has the authority to look into complaints against him because of the independent nature of his role.

Two of the complaints, which were obtained by Bloomberg Law, were first lodged with the NLRB’s equal employment office in May and June 2018. A third complaint filed with the agency and now before the EEOC is referenced in the investigatory reports as well as agency officials’ communications and a review performed by the inspectors general oversight panel. That group, consisting of inspectors general at other agencies, determined in September there was “insufficient evidence” of discrimination or other wrongdoing by Berry.

The complaints come amid tension between Berry, who was appointed by a Republican-majority board in 2009, and the board’s Republican members. Berry has raised conflict-of-interest concerns that forced the board to scrap a closely watched decision shortly after GOP members took control in 2017 and sparked a comprehensive review of ethics procedures.

The five-member board, now down to just three Republicans, has the right to remove and replace Berry for any reason through a two-thirds majority vote.

Inspectors general are tasked with rooting out fraud, waste, and abuse at federal agencies, primarily through audits and investigations. They perform regularly scheduled reviews and respond to inquiries from Congress as well as anonymous tips received through employee hotlines.

Labor board Chairman John Ring (R) and other agency officials met Jan. 22 with representatives of the oversight body, known as the Council of the Inspectors General on Integrity and Efficiency, according to documents obtained by Bloomberg Law and sources familiar with the meeting. They discussed how to handle the situation while the EEOC looks into the complaints. The EEOC has the power to order “appropriate remedies” to enforce federal workplace discrimination law.

“We respect the IG’s authority to organize his audit and investigative activity as he sees fit,” Ring said in a Jan. 6 letter to the oversight council. “However, agency leadership has an obligation to take action to prevent alleged discrimination, harassment and retaliation.”

The oversight council’s review stemmed from a separate complaint Ring filed in November 2018, which centered largely on the same accusations of discrimination that the EEOC is probing. Ring later told lawmakers he began hearing accusations from “several” senior officials about misconduct by Berry shortly after joining the board in April 2018.

It was not clear from the oversight council’s report whether the group, which didn’t recommend any discipline, reviewed all of the information in the three separate discrimination probes. A council spokesperson declined to comment.

Some of Berry’s accusers have also taken their complaints to Capitol Hill. Sen. Chris Van Hollen (D-Md.) and Rep. Anthony Brown (D-Md.), in separate letters to the board in late 2019, expressed concerns after being contacted by agency employees who said they were targeted by the inspector general. Some of those employees are constituents of the Maryland lawmakers.

Brown told Ring in December that he’s “alarmed” by complaints lodged with his office that Berry has “created a hostile and discriminatory work environment,” according to his letter. Those complaints alleged that Berry “routinely humiliated colleagues, discredited staff at NLRB, undermined work of other departments and acted in a discriminatory manner,” Brown said.

Van Hollen told NLRB Deputy General Counsel Alice Stock that a board management official complained of “harassment, bullying and discrimination” by Berry.

Ring responded to Brown that the oversight council’s findings have largely tied his hands, even though the council doesn’t have the power to make binding decisions. He didn’t say whether the board has considered voting to remove Berry from his position. Ring and Stock both said in letters to the Maryland lawmakers that separate EEOC reviews into the three complaints are ongoing.

Brown: A ‘Dozen’ Complaints

The still-pending EEOC cases and the inquiries by Van Hollen and Brown will likely increase attention on what some current and former senior NLRB officials have described as years of gripes about Berry’s allegedly over-aggressive approach to his role. That includes the recent allegations of racial and gender discrimination. The NLRB declined to say whether Berry has previously been accused of discrimination or other wrongdoing.

Brown’s office has been alerted to a “dozen” allegations about Berry, Brown’s chief of staff, Matthew Verghese, told Bloomberg Law. His staff heard direct accounts of alleged misbehavior from six NLRB employees and second-hand reports involving about six others, starting in November, Verghese said.

One of the three senior executives who filed an EEOC complaint told labor board officials that Berry barged into a room during a departmental conference call and screamed obscenities at him because some sensitive internal information had been inadvertently posted on a public area of the NLRB website, according to internal documents.

Berry allegedly yelled loudly during the incident, saying: “You are going to fix this,” and “You’re not even taking a potty break.” Berry later acknowledged he likely made the “potty break” comment, according to agency investigatory reports, but said he hadn’t meant to come across as demeaning.

“We learned that the identities of each person who had contacted our Hotline was on the webpage—publicly available to any person who Googled our office,” Berry said in a letter to the oversight council, which was included as part of its report. “Because this is such sensitive information, and because I knew our webpage was very likely being looked at during that time, I knew this was a situation that had to be dealt with immediately.”

Other accusers described interactions where Berry allegedly snatched a laptop from an agency employee because he wanted information related to an investigation, according to the reports. Some also said he interrogated other senior managers during meetings that were ostensibly held for other purposes, undermining them in front of subordinates and staff. They said Berry didn’t subject white employees to the same treatment, claims that he denied in investigative reports.

“His behavior toward me and my predominantly African-American staff is unethical, antagonizing, targeted, and intentional,” one of Berry’s accusers said in her complaint.

Some employees were so upset after interactions with Berry that management sent them home, Berry’s accusers said, according to investigatory reports. Two of the managers who filed EEOC complaints reported experiencing anxiety and other health issues which they said were triggered by Berry’s conduct.

But other employees told NLRB investigators that they weren’t aware of the situations described in the complaints, or said they didn’t think Berry’s behavior was motivated by discrimination. Complaints at the NLRB must be reviewed internally before they are sent to the EEOC.

One employee told the oversight council that Berry is “very direct” and “said senior managers did not like being told what to do in a direct manner,” according to the council’s report.

Berry denied any racial animus during the council’s investigation.

“Berry said he did not initiate investigations based on race, national origin, or any other protected class, further explaining that audits and investigations were either part of the OIG’s annual plan or came in via the OIG hotline,” according to the council’s report.

Bloomberg Law reviewed internal labor board investigatory reports based on two of the ongoing complaints against Berry. Agency staffers completed those investigations before the accusers filed complaints with the EEOC.

Bloomberg Law also reviewed communications between board officials and Van Hollen and Brown, a letter from Ring to the oversight council, and the council’s investigatory report.

Oversight Council: ‘No Evidence’

Some current and former senior NLRB officials previously suggested to Bloomberg Law that Ring might be using the complaints as a way to get rid of an inspector general who has stoked concerns about how the board has handled conflicts of interest under his stewardship. Ring, through an NLRB spokesman, declined to comment on the charge.

The board was forced to withdraw what was then its most significant labor policy change under President Donald Trump after Berry concluded that Republican member William Emanuel (R) should have sat out the case in which the board made that change because of ties to his former law firm. Berry’s investigation also led to increased scrutiny from Democrats in Congress, and prompted Ring to undertake a comprehensive internal review of the agency’s ethics rules.

But some of Berry’s accusers say board leadership has “ignored” the allegations made against the inspector general, Brown said in a letter to Ring.

“Employees have stated that further attempts to report inappropriate behavior by Mr. Berry have resulted in professional retaliation and meritless IG investigations,” Brown told Ring.

Ring said he’s “done everything possible to address” the complaints against Berry, according to their correspondence. He also said he’s “limited” by the unique laws governing agency inspectors general.

Board leadership “established a protocol to prevent direct contact to the extent possible between the IG and his accusers,” Ring said in the letter to Brown. But an NLRB official told Bloomberg Law that Berry hasn’t agreed to the new protocol, which would have required him to sit out matters involving his accusers.

The oversight council, which is currently run on a rotating basis by Labor Department Inspector General Scott Dahl, didn’t substantiate claims of bias or abuse of authority.

“NLRB officials alleged Berry discriminated against them because of their national origin or race and repeatedly initiated audits and investigations into their offices for prohibited reasons,” the oversight council said in its report. “We found no evidence to support the allegations, nor could we substantiate Berry engaged in discriminatory behavior toward NLRB officials; however, we did find an instance when Berry acted in a manner with an NLRB staff member that the individual felt was demeaning.”

Ring told Brown the oversight council “directed” the board to “take no disciplinary action” against Berry. The council is limited to making “findings, conclusions, and recommendations,” and doesn’t have the power to order an agency head to take specific actions, according to its bylaws.

The oversight council declined Bloomberg Law’s request to state whether it issued a directive to Ring.

“We remain highly concerned by the allegations brought forward in these matters,” Ring said in a letter to Brown.

‘Politics’ Concerns

Brown requested that Ring establish a “plan of action” to address the situation and ensure that employees can work “in a safe environment that restores faith in their leadership.”

He’s concerned the complaints against Berry may become tainted by other disagreements between Republican board members and the inspector general, Verghese, Brown’s chief of staff, told Bloomberg Law.

“You may have concerns about how the president’s appointees are running the agency, or disagreements about policy issues, but that’s separate from how people are being treated; and people are telling us that their legitimate complaints are being marginalized in this process,” Verghese said.

“That’s the Congressman’s top concern—we have to deal with the employment and people issues first, then the politics.”