Daily Labor Report®

NLRB Fired Black Lawyer for Losing Evidence, Not Due to Bias

Jan. 11, 2019, 7:03 PM

A former National Labor Relations Board attorney was removed from his job because he lost confidential witness statements and tried to mislead investigators, not due to discrimination, a federal judge ruled.

The Jan. 11 decision upholds a ruling by the Merit Systems Protection Board, which found the NLRB proved its charges against Gregory Powell. The MSPB hears appeals by federal employees from certain adverse employment actions and its review of Powell’s removal was complete and proper, the U.S. District Court for the Northern District of Alabama said.

Powell, who is black, was staying in and working out of a hotel room in Florence, Ala., in 2012 while investigating alleged unfair labor practices by Hillshire Brands. He met with witnesses and drafted affidavits in—and often left documents strewn across—his hotel room, Judge Karon Owen Bowdre said. He also used the hotel’s business center rather than his own portable printer to print off completed affidavits for witnesses to sign, the judge said.

Three unsigned affidavits were delivered to Hillshire’s attorney and she emailed Powell. He had her send the affidavits back to him, but he didn’t immediately report the incident to anyone else at the NLRB.

The loss of the affidavits eventually became known and a supervisor asked Powell what happened. When the supervisor pressed him to provide a written account, he allegedly asked her, “White employees don’t have to write responses so why do African American men have to?” He also said the affidavits would have ultimately been seen in court anyway.

Then, during an investigation by the NLRB’s inspector general, Powell tried to point the finger back at the supervisor, Bowdre said.

The IG ultimately charged Powell with failure to safeguard agency property, negligent performance of duties, failure to follow supervisory instructions by not providing the requested written account of the incident, and lack of candor during the investigation.

The evidence supported the NLRB’s, and thus the MSPB’s, conclusion that the charges against Powell were founded, Bowdre said. The board didn’t “definitively” prove that the lost affidavits came form Powell’s hotel room, but there was “more than enough evidence” that they most likely did, she said.

It was also reasonable to conclude that a penalty short of termination wasn’t appropriate given the serious nature of Powell’s transgression and his lack of remorse, the court said.

Townsend Law Firm represented Powell. The U.S. attorney’s office represented the NLRB.

The case is Powell v. NLRB, 2019 BL 8617, N.D. Ala., No. 2:16-CV-01492, 1/10/19.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; C. Reilly Larson at rlarson@bloomberglaw.com

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