NLRB Watchdog Condemns Bias Probe as Attack on His Authority

The National Labor Relations Board’s political leader and its inspector general are locked in a standoff over pending discrimination complaints against the inspector general and an unanswered legal question he’s raising in his defense: Who has the power to watch the watchdog?

The Equal Employment Opportunity Commission, which investigates workplace discrimination complaints by federal workers and in the private sector, is reviewing three complaints from NLRB senior executives accusing agency Inspector General David Berry of discrimination and harassment. The complaints were previously reviewed by equal employment opportunity investigators within the NLRB as well as an oversight body of federal inspectors general.

Berry, who is white and is being accused by three officials of color, has told labor board Chairman John Ring (R) that agency staff and the EEOC don’t have authority to look into the complaints, according to documents obtained by Bloomberg Law and two agency officials familiar with the situation. The inspectors general oversight group, the Council of the Inspectors General on Integrity and Efficiency, is backing Berry in that argument.

Jurisdiction Question

Berry and the oversight council say the EEOC doesn’t have jurisdiction over the complaints because the executives accusing him of discrimination don’t work for Berry’s office, which he says is a separate entity under federal law. They also argue the allegations are a “collateral attack” on Berry’s investigative and auditing activities, which they contend are not subject to EEOC review.

“Mr. Berry has regularly asserted that OIG activity is not subject to EEO jurisdiction and that the agency’s EEO process has no jurisdiction over any of the EEO administrative complaints,” Ring said in a Jan. 6 letter to Allison Lerner, vice chair of the oversight council. Ring has since debated the issue in dueling letters with Scott Dahl, chairman of the council’s integrity committee.

The allegations and the dispute over jurisdiction have increased tension between Berry and Ring. Berry contends that Ring can’t force him to sit out audits and investigations involving his accusers while the EEOC investigates the complaints. Ring’s tenure has been frustrated by the inspector general’s concerns about member conflicts of interest, clashes that have grown into outright acrimony amid their disagreement over the EEOC probes.

The feud between Berry and Ring threatens to undermine a unique working relationship that’s key to the agency’s operation. Ring, along with General Counsel Peter Robb, is the agency’s chief administrator, responsible for the NLRB’s day-to-day operations and overseeing some 1,300 employees. Berry, as the board’s top cop, is an independent, career employee tasked with rooting out fraud, waste, and abuse at the taxpayer-funded agency, which enforces U.S. labor law relative to collective bargaining and unfair labor practices.

‘Barbed Wire’

“An inspector general always straddles a barbed wire fence,” said Gordon Heddell, who served as inspector general at the Labor Department and, later, at the Defense Department. “On the one hand, you’re reporting to Congress, but you also have to work with the agency head to be effective. The relationship between the inspector general and the agency leadership at the NLRB requires a lot more care than at other agencies because it’s a small organization.”

Berry has repeatedly denied the accusations against him. The oversight council, after reviewing the allegations, told Ring in September that there was “insufficient evidence” of any discrimination or wrongdoing by Berry. But Sen. Chris Van Hollen (D-Md.) and Rep. Anthony Brown (D-Md.) are pushing Ring to take action to protect the three executives who say they have been “bullied” by Berry.

Now the EEOC is set to weigh in. The commission is reviewing the complaints against Berry and is likely to consider his argument that the agency doesn’t have jurisdiction. It’s not clear when the EEOC, whose decisions can be appealed in federal court, will wrap up the probes.

Berry, Ring, and a representative for the oversight council declined to comment.

Berry, who was appointed by a Republican-majority board in 2009, is known inside the agency as a hard-nosed auditor who often bristles at perceived slights or challenges to his independent authority, six former board officials told Bloomberg Law. He has ruffled feathers with career employees and political appointees on both sides of the five-member NLRB, whose political leadership shifts with changes in presidential administrations. The board now has just three members, all of whom are Republicans.

Berry has tangled with the board’s current members since 2018, when he found that Member William Emanuel (R) should have sat out a closely watched, precedent-shifting case because of the implications of the decision for one of Emanuel’s former clients. That’s not the first time he’s been critical of board members.

Former Republican board member Terence Flynn was forced to resign in 2012, after Berry issued a scathing report finding that Flynn had been leaking confidential information to corporate lawyers. Former Democratic member Dennis Walsh was suspended without pay from his post as an NLRB regional director in 2016 after Berry said Walsh misled his bosses about his role in seeking fundraising solicitations from labor unions for a nonprofit organization.

Berry told an NLRB official reviewing one of the pending discrimination complaints that he was accused of discrimination in a separate incident in 2010, a matter that was eventually “settled,” according to an investigative report obtained by Bloomberg Law. He also said “from time to time employees have made complaints regarding OIG oversight activity that have been brought to his attention,” and later resolved.

‘Collateral Attack’

Berry and the oversight council’s argument that the allegations are a “collateral attack” on Berry’s investigative and auditing activities, which are not subject to EEOC review, could be tough to prove, said Debra D’Agostino, a Washington lawyer who represents federal employees in discrimination cases.

The collateral-attack defense is commonly used in situations where an employee claims they were denied a security clearance because of discrimination, or that a boss retaliated against the employee by providing information in unemployment insurance or workers compensation probes that prevented the employee from getting benefits.

“The idea is that you can’t sort of relitigate an entity’s decision through the EEO process,” D’Agostino said. “But if the allegation is that he took an action that was discriminatory, the EEOC would have jurisdiction.”

The EEOC in 2017, for example, ruled that it had the authority to review a Veterans Affairs Department employee’s claim that the agency’s inspector general “targeted” her for an investigation over alleged misuse of agency time. The employee, an unnamed black woman, said she was “bullied, harassed, and demeaned” during the investigation and that the inspector general’s office didn’t treat white, male employees in the same fashion.

The EEOC rejected the Veterans Affairs department’s argument that the allegations were a collateral attack, citing the “explicit allegations that the OIG investigation and report were expressly motivated by discriminatory factors.”

Berry and the oversight council’s Dahl are pointing to a pair of different EEOC decisions that they argue shield Berry from the accusations, according to communications between Ring and the oversight council. The commission said in a 2014 case involving the National Security Agency that “claims challenging the actions taken during an OIG investigation are a collateral attack to the investigation; the proper forum for raising such claims is with the OIG, not in the EEO process.”

The EEOC in 1996 rejected a Navy employee’s claims that he was discriminated against in the course of an inspector general investigation. The commission said the inspector general’s office was a separate entity from the Navy and that the employee couldn’t accuse the agency watchdog of workplace discrimination because the IG wasn’t his employer.

No matter how the pending complaints against Berry are resolved, the fallout from the accusations threatens his ability to do his job, said Heddell, the former inspector general.

“IGs live in a world where criticism is part of everyday life,” Heddell told Bloomberg Law. “But if the agency head gives the impression that he doesn’t trust you, usually the people in the organization won’t trust you. If they don’t trust or respect you, you cannot be effective.”