The evidence against Flynn, who may have violated federal criminal law, is compelling. In addition to funneling details of board deliberations to two former Republican NLRB members, Peter Schaumber and Peter Kirsanow, Flynn apparently lied to investigators and deleted an incriminating email from Schaumber, thanking him for confidential information.
Rep. George Miller (D-Calif.) has asked the Attorney General to investigate the case. Unlike the Inspector General, who only has the authority to investigate NLRB personnel and had limited access to Flynn’s emails, the attorney general could interview those who improperly received information from Flynn. This may help answer the critical questions: what information did Flynn disclose, to whom and what was it used for?
Also this week, the Senate exercised its constitutional “advise and consent” responsibility. Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor and Pensions Committee, responded to the IG’s “especially troubling” findings by requesting that Flynn provide the HELP committee with records of his communications with former NLRB officials and others outside the agency.
Ironies and double standards abound in the scandal.
First, corporate groups, which likely benefited from the illegal disclosure of confidential information via Flynn’s emails, are now railing against the board’s plans to include employee emails on so-called “Excelsior Lists,” which employers file after the NLRB has ordered a union certification election. While they want to stop unions communicating with employees, employers regularly convey anti-union information via email.
According to the IG’s report, Schaumber, who wrote in the National Review that the board’s notice-posting rule “diminishes the agency,” had the most numerous email exchanges with Flynn. Schaumber has attacked the proposal to include emails on Excelsior Lists on Fox News and elsewhere, and may have based his criticism on information gleaned from Flynn’s unlawful emails. This behavior clearly diminishes the reputation of the agency.
Second, the Chamber of Commerce – which has also remained silent on the Flynn scandal – warns that we should expect from the board more “slanted” rulemakings of “significant concern to employers.” But the slanted behavior of significant concern to all here is the unlawful disclosure of confidential deliberative information to employer groups that, like the chamber, are involved in ongoing litigation against the board.
Third, Flynn claims he is “troubled by the politicization of this internal matter,” while ignoring the fact that his unlawful disclosures have fueled relentless political attacks on the board by outside groups. At a minimum, Flynn is guilty of misusing the resources of the board against itself and ensuring that this scandal is anything but an “internal matter.”
Fourth, Rep. Elijah Cummings (D-Md.), ranking member on the House Oversight and Government Reform Committee, has asked Chairman Darrell Issa (R-Calif.) to investigate the report on Flynn. But instead of devoting resources to this real scandal, Issa requested on Wednesday that the NLRB provide extensive documentation on cases involving unions’ political activities – part of a broader conservative agenda to hobble labor’s political efforts.
Finally, in an act of remarkable chutzpah, GOP leaders, who forced Obama to make recess appointments by vowing to block his nominees to the board, have blamed the scandal on the same recess appointments.
Over the past year, GOP leaders have lambasted the NLRB as a “rogue agency” (Issa), “un-American” (Gov. Mitt Romney (R-Mass.)), “thuggish” (Sen. Mitch McConnell (R-Ky.)), “thugs from a third-world country” (Sen. Jim DeMint (R-S.C.)), “illegitimate” (Rep. Tim Scott (R-S.C.)), and so on.
Now that we have real evidence of serious wrongdoing at the board, the GOP's attacks seem even phonier then before, and the same Republican voices have grown eerily silent.