The big news in labor law the past few days has been the NLRB Inspector General report concerning Board member and Republican appointee, Terence Flynn. Corporate Counsel has an excellent story on the report. As of Monday, Flynn was adamant that he would not resign.
It appears that Flynn’s status might come down to a funny wrinkle in modern technology: the auto-fill feature in Microsoft Outlook. The most serious allegation in the IG’s report is that Flynn leaked to former Board Member Peter Schaumber a confidential document on the Board’s new representation rules. Flynn claims that he did not intentionally send the document to Schaumber, but, instead meant to send it to another “Peter” – Peter Carlton, who serves as his Chief Counsel. Anybody who has used Outlook has made this mistake, so Flynn’s defense is at least plausible. However, the IG didn’t buy his story, claiming that he responded to Schaumber’s reply email and thus should have caught the mistake right away. Instead, Flynn waited almost two weeks before he claimed to have figured out the mishap.
The rest of the IG’s report contains allegations that, if proven, are probable violations of ethics policies – such as emailing old contacts at his law firm about some NLRB procedures. But in Washington, DC, where government officials frequently stay in touch with “contacts” on the outside and such contacts frequently ask for de minimis favors, one must also wonder if the same types of violations are commonplace at other agencies.
The scandal has labor unions calling for Flynn’s resignation and Democrats on Capitol Hill are promising investigations. Those are probably not Flynn’s biggest concern though, as the whole matter has been referred to the Justice Department for an investigation as well. What’s more, Flynn was merely a recess apointment to the Board and needed full Senate confirmation before he could assume his seat on a more permanent basis. Such confirmation may be problematic given this scandal.