By Alison Rath

National Labor Relations Board Member Terence F. Flynn (R), who was recess-appointed to the Board by President Obama in January, has been called to resign in the wake of  recent reports of ethical transgression.  The Board’s Inspector General, David P. Berry, recently issued two reports alleging that when  Mr. Flynn was chief counsel for the agency, he leaked confidential information outside of the Board, notably to Peter Schaumber, a former NLRB member and ex-campaign adviser to Republican presidential candidate Mitt Romney.

The initial report, dated March 19th, concluded that that Mr. Flynn distributed case lists and information on pending cases in violation of ethical rules.  Subsequent to Mr. Flynn’s response to the investigation, which according to Mr. Berry “caused us concern,” the investigation continued, and a supplemental report was produced on April 30th.  This report detailed that Mr. Flynn sent emails to Mr. Schaumber attaching information such as the draft of a Board decision, several dissenting opinions, and an internal memorandum and other messages.  Mr. Berry wrote that the Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. § 2635.703(a), prohibits disclosure of “[n]onpublic information” that a federal employee “knows or reasonably should know had not been made available to the general public.”

The supplemental report further noted that Mr. Flynn received and edited drafts of Mr. Schaumber’s writings at the time Mr. Flynn’s nomination to the Board was pending.  Mr. Berry stated that the timing “gives rise to the appearance that Mr. Mr. Flynn’s disclosure of deliberative information and assistance to Mr. Schaumber was in return for Mr. Schaumber’s lobbying on behalf of Mr. Flynn’s nomination.”

These reports have led for calls of resignation, including by Rep. George Miller (D-Ca.), who forwarded the IG’s report to Attorney General Eric Holder, claiming that the allegations “threaten the integrity of the Board’s most vital operations.”  Rep. Miller further wrote to Mr. Flynn that “your continued presence at the Board compromises the Board’s ability to function efficiently and effectively.”  Furthermore, Sen. Tom Harkin (D-Iowa), has threatened to hold a congressional hearing, after Mr. Flynn’s apparent failure to cooperate with the investigation. 

Member Mr. Flynn has denied any wrongdoing, and his attorney Barry Coburn has stated his objection to the investigation and the report’s findings.  Coburn further attacked the impartiality of the investigation, stating that “the entire course and conduct of this investigation” . . . “raises serious questions as to its objectivity, impartiality, independence, and intended purpose.”

On May 2nd, NLRB Chairman Mark Gaston Pearce (D) released a statement that the reports “raise questions of ethics and trust that go to the heart of the values shared by all of us at the NLRB,” and that the agency is currently considering the necessary response.