While the rest of America was busy celebrating the long Memorial Day weekend, internal turmoil at the NLRB finally resulted in action when, on May 26, NLRB Board Member Terrence Flynn submitted his resignation. The resignation is effective July 24, but Flynn stopped conducting all agency business immediately.
As we discussed on this blog in March, Flynn has been the subject of a NLRB Inspector General investigation into “leaking” confidential Board materials to former Board Member Peter Schaumber. After the first report was released in March, Flynn proclaimed his innocence, leading to a second IG Report released this past May. Part II of the Flynn investigation produced some instances where he leaked dissenting opinions to Schaumber before formal Board votes. Evidence also surfaced that Flynn had some editorial input on a few of Schaumber’s op-eds that appeared in major newspapers and were critical of Board decisions.
It is interesting to read Flynn’s lawyer’s response to the May report. He does not necessarily deny all of the charges, but basically says that the disclosures are much ado about nothing as Schaumber and Flynn are close personal friends, former professional colleagues, that Schaumber was a former Board member himself, that Schaumber is not actively involved in representing any clients, and that Flynn did not do anything that harmed the “deliberative process.” In essence, these were just emails between two personal and professional friends, no harm, no foul.
That explanation certainly did not fly with House and Senate Democrats, nor did it apparently carry much weight with the full NLRB. In a statement released May 29, the four remaining NLRB members—including usual Flynn ally Brian Hayes—stated that the “recent events have created a distraction” from the Board’s mission, and that, “these events also caused us to reflect on the extremely high value we as Board Members place on the deliberations we have with each other . . . . Hopefully, we can all come away from this difficult experience and the threat it posed to our deliberative process with a greater appreciation for that process.”
Since Flynn was a Republican appointee to the Board, he will be replaced by another Republican appointee, almost certainly with similar views on labor policy and law. The controversy will have little impact on the final outcome of pending cases. However, the case will certainly make Board members and staff more cautious in how they communicate with friends on the outside. While Terrence Flynn appears to be the first to be caught, it is hard to believe that he was the only Board employee to ever share information in this fashion. Board members and staff will presumably be more careful in the future about sharing NLRB information with outsiders.