Watchdog: GOP member of NLRB violated ethics rules

A Republican member of the National Labor Relations Board (NLRB) shared confidential information with former board members in violation of ethics rules, according to a report by the agency’s inspector general.

The report — dated March 19 but released Friday — details emails that NLRB member Terence Flynn, then serving as an agency chief counsel, sent to former NLRB members Pete Kirsanow and Peter Schaumber and other lawyers outside of the agency. Those emails included information that was not meant to be public, including the names of NLRB staff attorneys assigned to cases, where cases stood at the agency, and the positions board members were taking. 

The IG report concludes that Flynn violated his ethics code and was not completely forthcoming with investigators.

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“As a result of our investigative efforts, we found that Mr. Flynn, while serving as a chief counsel, violated the Standards of Ethical Conduct for Employees of the Executive Branch and that he lacked candor during the investigatory review,” said the report by Dave Berry, the labor board’s IG.

Flynn was one of the three controversial recess appointments that President Obama made to the NLRB in January. Flynn previously served as chief counsel to NLRB member Brian Hayes, as well as to Schaumber when he was on the board. 

The report said Flynn, as a NLRB veteran, should have been aware that he wasn’t authorized to share deliberative information with people outside of the agency. 

“Given Mr. Flynn’s position as a chief counsel and his years of service, he knew, or should have known, that he had a duty to maintain the confidence of the information that he received in the performance of his official duties,” the report said. 

The report said that “the improper disclosure of information” to Kirsanow and Schaumber amounted to “the private benefit” of Kirsanow’s client, the National Association of Manufacturers (NAM), and to Schaumber’s labor relations consulting practice.

NAM has sued the NLRB over its rule that would require employers to post notices explaining to workers their collective bargaining rights.

In addition, the IG said Flynn demonstrated a “lack of candor” and misled investigators about his emails to Schaumber. 

A search of Flynn’s government computer by investigators also turned up a business plan for Schaumber’s consulting firm. 

“My practice will be developed in part by leveraging my Agency connections and focusing the attention of senior management on the likely priorities of the Obama Board and strategies to respond to them,” the business plan said. Schaumber also touted his connections to NLRB member Hayes and “all of the significant players” at the labor board in the plan.

Flynn also was found to have been emailing with attorneys at Crowell & Moring. He was counsel in the law firm’s labor and employment group from 1996 to 2003.

Kirsanow did not respond to the IG’s request for an interview, according to the report.

In an interview with The Hill, Kirsanow denied any wrongdoing.

"[The report] seems to suggest to me that Terry Flynn sent some inside information to me that I used in our case. Wrong," said Kirsanow, a partner at the law firm Benesch.

Kirsanow said he asked Flynn for public information about an old case at the labor board, which Flynn couldn't find. Flynn also sent a copy of a complaint the National Federation of Independent Business and the National Right to Work Foundation filed against the NLRB for its notice rule — a week after NAM, Kirsanow's client, filed its own complaint against the same rule. 

The report said Flynn used government resources to help Kirsanow. He denied that claim, and said he did not benefit at all from Flynn sending him the document. 

Flynn declined to comment on the report, according to Nancy Cleeland, a NLRB spokeswoman. 

Both the inspector general and the NLRB also declined to comment. 

“The Inspector General does not comment on investigative reports even if they’ve been made public. Chairman [Mark] Pearce has no comment on the report of the inspector general, whose office is independent,” Cleeland said. 

Schaumber didn’t immediately reply to messages left asking for comment.

Rep. George Miller (D-Calif.), ranking member on the House Education and the Workforce Committee, sent a letter to Attorney General Eric Holder on Friday about his concerns regarding the NLRB. 

The lawmaker forwarded a copy of the report to Holder and also said its findings “about the conversions of sensitive government information for private gain should not go without further scrutiny.”

In the letter, Miller also said that as part of the investigation, the IG had “fulfilled his statutory requirement to report to you information about possible criminal activity and that Holder should “carefully consider the information that the Inspector General has provided to you.”

Earlier this month, Miller pushed for disclosure of the report, which led to an allegation from him that committee Republicans were trying to squash it — a charge they denied.

Hayes was also investigated by the NLRB's IG, but a report from watchdog released in January cleared him, saying he was not offered enticements to resign. If Hayes, then the NLRB’s lone GOP member, had resigned, his absence would have kept the labor board from reaching a quorum and rendered it unable to issue rulings or regulations.