Watchdog says GOP member of labor board wasn’t enticed to resign

A Republican member of the National Labor Relations Board (NLRB) was not offered enticements to resign last year, according to a report from the agency’s inspector general.  

In the fall of 2011, Brian Hayes, the labor board’s then-lone Republican member, threatened to resign. Doing so would have denied the NLRB a quorum and rendered it unable to issue rules or regulations. 

Hayes would later decide against leaving, but his resignation threat led to calls for investigation into whether or not he was enticed to leave the NLRB by outside parties with an interest in seeing the board shut down.  

Under the Obama administration, the labor board has been heavily criticized by business groups and the GOP, which see a union-friendly tilt in many of the NLRB's actions. 

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“As a result of our investigative efforts, we found no evidence that enticements were made to Member Hayes to resign his position as a Board Member,” Dave Berry, the NLRB’s inspector general (IG), wrote in a Jan. 23 memo to Hayes and Mark Pearce, the labor board’s Democratic chairman. 

The inspector general did, however, find that Hayes sought employment with Morgan, Lewis & Bockius, a major law firm active in labor law cases that had business before the agency. Nevertheless, Berry found no wrongdoing by Hayes.

“Although our investigation disclosed two particular matters involving Morgan Lewis & Backius [sic], LLP, during the relevant period of time, we determined that Member Hayes did not participate personally or substantially in those matters,” the memo concludes.

The “two particular matters” were when the law firm was active with filing public comments and litigation regarding one NLRB rule that would require employers to post notices informing workers of their union organizing rights, and another that would speed up union elections. 

In late September or early October 2011, Hayes first talked to a Morgan Lewis attorney about a job there, which the NLRB member described as “if you ever decide to resign we’d like to talk to you,” according to the report. In mid-October 2011, Hayes then had a second conversation with the attorney about employment. 

Because of the high possibility that he might resign, Hayes thought he should “test the water.” He met with an agency ethics officer and then recused himself from cases involving Morgan Lewis on Oct. 19 last year, according to the report. 

Hayes had one more discussion with the Morgan Lewis attorney about a job at the firm.

The attorney said that talk happened on or around Nov. 1. The attorney then declined to discuss further a job for Hayes because his firm “did not want to influence Member Hayes’ decision regarding his resignation or to create such an appearance,” according to the memo. 

The IG’s office interviewed the ethics officer and Morgan Lewis attorney, who are unnamed in the report. Hayes was also interviewed and his government emails were searched, which did not disclose any evidence that he was enticed to resign, according to the report. 

Hayes would later announce at a public NLRB meeting that he had decided against resigning. On Dec. 22, he notified Morgan Lewis that he was not seeking employment with the firm, according to the report.

The IG’s report might not be the end of the matter. Some on Capitol Hill are calling for a new investigation. 

Rep. George Miller (D-Calif.), ranking member on the House Education and the Workforce Committee, wrote a letter Thursday to Attorney General Eric Holder requesting that the Justice Department investigate Hayes’s resignation threat.

“In light of the Inspector General’s evidence that employment discussions were taking place between Board Member Hayes and Morgan Lewis for at least two and one-half months, the narrow scope of his investigation, and the many questions that remain about the propriety of the Hayes and Morgan Lewis employment discussions, I do not believe that Member Hayes’ decision not to resign and remain at the Board ends our inquiry,” Miller wrote in his letter.

A lawyer for Hayes said there was no need for Justice to investigate.

"In a report issued earlier this week, the NLRB’s Inspector General found no evidence to support anonymous and unfounded allegations that Board Member Brian Hayes had been improperly 'enticed' to resign his NLRB appointment," said Rob Kelner, a partner at Covington & Burling and counsel to Hayes, in a statement. "The IG determined that there was no evidence of any improper enticement and no basis for a referral to the Department of Justice."

Berry, the NLRB’s inspector general, could not be immediately reached for comment for this article.

A NLRB spokeswoman also declined to comment.

This story was updated on Jan. 27 at 9:33 a.m.