US Senate Committee on Health, Education, Labor, & Pensions

In Letter, Harkin Calls on Embattled NLRB Member Flynn to Resign

Tuesday, May 08, 2012

WASHINGTON—Today, Senator Tom Harkin (D-IA), Chairman of the Senate Committee on Health, Education, Labor and Pensions, sent a letter to National Labor Relations Board (NLRB) member Terence Flynn, requesting his resignation after the NLRB Inspector General uncovered Flynn’s repeated ethics violations. The Inspector General’s report uncovered violations of ethical standards including disclosure of confidential draft opinions to attorneys in private practice, including to former NLRB Members Peter Kirsanow and Peter Schaumber, a former campaign advisor to Mitt Romney.

“The conduct described in the reports breaches the most fundamental trust placed in a federal employee, particularly one entrusted to be an impartial adjudicator,” Harkin wrote.  “Through your actions, you have potentially violated the due process rights of the parties, undermined the enforcement of laws enacted by Congress, and demonstrated a fundamental lack of integrity and the professional judgment required of a public servant. I hereby officially request that you resign your position and withdraw your nomination from consideration for confirmation.”

Harkin also reiterated the request he made of Mr. Flynn last month for the documents related to the violations. Those documents have not yet been submitted to the HELP Committee.

The full text of the letter follows:

Dear Member Flynn:

            As Chairman of the Senate Health, Education, Labor, and Pensions Committee, I received a March 19, 2012, report from the National Labor Relations Board (NLRB) Inspector General David Berry, which detailed repeated violations of ethical standards you committed while serving in your position as Chief Counsel to NLRB Board Member Brian Hayes during the period June 2011 through your recess appointment to the NLRB on January 4, 2012.  The report listed instances where you violated ethical standards by providing confidential information to management attorneys in private practice, including to former NLRB Members Peter Kirsanow and Peter Schaumber.  Mr. Schaumber was serving as a campaign advisor to Mitt Romney at the time.  The conduct described in the report plainly violates the standards of ethical behavior expected of federal employees.  Some of the most disturbing findings include:

  • Evidence that you provided confidential NLRB information to private management attorneys, including pre-decisional votes, status, staff assigned, and position of members on pending cases;
  • Evidence that you provided Mr. Schaumber with confidential analyses prepared for Board Members by Counsels while the NLRB election rule was pending;
  • Evidence that you lacked candor during the investigation, and sought to cover up your wrongdoing by deleting one of the confidential communications to Mr. Schaumber immediately upon learning of the Inspector General’s investigation.

Upon reviewing the Inspector General’s report, I sent you a detailed request for additional communications covering your entire tenure with the board.  In your response of April 16th, you failed to provide a single document or to acknowledge any additional communications that could have violated the confidentiality of Board deliberations. 

Yet, on May 2, I received a supplemental report from Inspector General Berry examining the period August 2010 through May 2011, and that detailed an astonishing list of additional confidential information that was improperly shared with Peter Schaumber in violation of the confidentiality of Board deliberations.  This report found that, among other things, you:

  • Forwarded Mr. Schaumber a confidential email from Chairman Wilma Liebman identifying her priorities from January 2011 to the end of her term in August 2011. 
  • On at least five occasions you emailed drafts of pending NLRB decisions to Mr. Schaumber before the decisions were final or public. 
  • On one occasion, in a case involving Albertson’s grocery store and the United Food and Commercial Workers International Union, you emailed Mr. Schaumber a draft majority decision written by Member Becker finding in favor of the union.  The case, which had been in litigation before the NLRB for about two years, was settled just two weeks after the pending decision was provided by you to Mr. Schaumber, and prior to issuance of the decision finding in favor of the union.  

The conduct described in the reports breaches the most fundamental trust placed in a federal employee, particularly one entrusted to be an impartial adjudicator.  Through your actions, you have potentially violated the due process rights of the parties, undermined the enforcement of laws enacted by Congress, and demonstrated a fundamental lack of integrity and the professional judgment required of a public servant.  You also breached numerous standards of ethical conduct.

Deliberative, pre-judgment documents are among the most sensitive information in the Board’s possession.  The NLRB solicitor stated that deliberative, pre-decisional materials are treated with the “highest confidentiality.”  Indeed, as a practice, the NLRB has refused to provide deliberative information in response to Congressional oversight requests.  One important rationale for protecting draft decisions is that on a collegial body such as the Board, drafts of opinions are a means to persuade colleagues to change their mind.  Disclosure of a draft dissent or majority opinion short-circuits that process.  As one court put it, “the adverse impact of transmitting such draft opinions to those outside the court system is so obvious that condemnation of it need not be based on an express Canon or Rule.” Matter of Fuchsberg, 426 N.Y.S. 2d 639, 648-49 (1978). 

The circumstances surrounding the disclosure of the Albertson’s decision illustrate the grave threat leaking draft decisions poses to due process rights.  It remains unclear whether Mr. Schaumber, or someone with whom he was in contact, informed Albertson’s or its attorneys of the pending negative decision, and if that played a role in Albertson’s decision to settle the case on the terms agreed to.  If that occurred, it would be a heinous breach of the basic principles of fairness that govern our legal processes.  This is vital information and, thus far, Mr. Schaumber has refused to cooperate with the Inspector General’s investigation or to provide any information on what he did with the leaked information.  I would encourage you to urge Mr. Schaumber to cooperate with the investigation.  Regardless, your conduct demonstrates a reckless disregard for the confidentiality of Board deliberative materials and raises an appearance of impropriety. 

Through your attorney, you offer a variety of explanations and legal defenses for your actions.  Those defenses are factually inaccurate and legally irrelevant.  Your primary defense is that the Inspector General did not cite specific statutes or rules that forbid disclosure of draft opinions.  That is simply false. 

According to the Inspector General Report, you violated multiple ethical guidelines.  An NLRB staff manual, Guide for Staff Counsel of the National Labor Relations Board, states that employees are only authorized to discuss pending cases with personnel on the Board-side of the Agency.  District of Columbia Rule of Professional Conduct 1.6, where you are licensed to practice law, prevents the disclosure of confidential material.  NLRB regulation 29 CFR 102.118 states that no Board employee shall release Agency documents without the written consent of the Chairman or General Counsel of the NLRB.  Your disclosure of confidential information on pending cases violated each of these provisions.  

Additionally, the Standards of Ethical Conduct for Employees of the Executive Branch do not allow an employee to engage in the “improper use of nonpublic information to further his own interest or that of another.”  Yet the Inspector General report clearly demonstrates that you were aware that Mr. Schaumber was using his ties to the NLRB create his private practice; and in in fact, you used NLRB resources to help him draft his business plan.

While you correctly note that your astonishing conduct did not occur during your tenure as a Member of the NLRB Board, that fact is irrelevant to the Senate’s consideration of your nomination and does not diminish the moral imperative that should compel you to resign from your position.  Your failure to do so to date serves as additional evidence that you lack the character and judgment to serve as a Member of the NLRB.  I hereby officially request that you resign your position and withdraw your nomination from consideration for confirmation. 

Finally, I reiterate my request that you provide the documents requested in my April 2 letter.  I also reserve the right to call you, Mr. Schaumber, and any other party involved in your misconduct to come before this Committee to explain your actions.  In order to fully inform this Committee about your conduct, I ask that you respond to this request by May 14, 2012.

Sincerely,

                                                Senator Tom Harkin

                                                Chairman, Committee on Health, Education, Labor and Pensions

cc:       Hon. Michael Enzi, Ranking Member

            Barry Coburn, Esq.

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