NLRB Probe: Ethics Investigation Involving Romney Adviser Underway.

NLRB member Terence Flynn.

WASHINGTON — Following the release of a potentially embarrassing inspector general’s report, Democrats in the House and Senate are pressing for more information on an ethics investigation at the federal labor board that has implicated an adviser to GOP presidential hopeful Mitt Romney.

In an investigation recently made public, the inspector general at the National Labor Relations Board (NLRB) found that current Republican board member Terence Flynn allegedly disclosed sensitive agency information to outside lawyers while he was serving as agency counsel last year. One of the apparent recipients was former Republican board chairman Peter Schaumber, a lawyer who’s been serving as an adviser to Romney on labor issues.

Normally a little-seen federal agency, the labor board has drawn harsh attacks in the past year from Republican lawmakers who claim its rules and decisions are favoring unions at the expense of businesses. Democrats, several of whom have defended the left-leaning board as it has come under fire, appear eager to widen the investigation of a GOP NLRB member and his contact with a Romney adviser.

On Monday Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor and Pensions Committee, sent a letter to Flynn asking that he turn over all records of his correspondence with Schaumber and Schaumber’s chief counsel since the former chairman left the board. In a statement, Harkin said the inspector general investigation “raises the alarming possibility that the recent political attacks on the Board could have been aided and abetted by [Flynn’s] unethical activity.”

Like Peter Kirsanow, another former board member mentioned in the report, Schaumber had written editorials last year blasting the labor board for its purportedly pro-union decisions.

According to the investigation, Flynn, who was recess appointed to the board by President Obama in January, allegedly passed along “the most confidential of Agency information” while he was counsel to former board member Brian Hayes, including case lists, preliminary votes and internal deliberations.

“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. Among his many interactions with Schaumber, Flynn also apparently edited an essay that Schaumber penned for the National Review, which lambasted the board’s alleged pro-labor leanings; helped prepare him for a debate with former SEIU union head Andy Stern; and helped craft a business plan for Schaumber based on the former board member’s past NLRB experience.

Harkin’s letter on Monday comes on the heels of another request, from ranking House oversight committee member Rep. Elijah Cummings (D-Md.), that Republicans on the committee conduct interviews of Schaumber and Kirsanow. “I am seeking transcribed interviews of these former officials to determine the extent to which they may have used this information for their own private benefit or to advance their clients’ business interests,” Cummings wrote last week.

Meanwhile, the AFL-CIO, which is mobilizing for Obama in a likely general election against Romney, has called on the former Massachusetts governor to cut ties with Schaumber. Late last week the trade federation sent out an alert to 700,000 people calling on Romney to “renounce” the adviser and “fire him immediately.”

The Romney campaign has not responded to repeated requests for comment regarding Schaumber.

In a statement last week, Flynn said he planned to stay on the board. “I am troubled by the politicization of this internal matter, in which I have committed no wrongdoing,” Flynn said, “and feel that this manufactured controversy is emblematic of the mean-spirited political theatrics that currently paralyze Washington and deter individuals from public service.”

2012 Labor And Employment Horizon.

Political and economic tensions continue to influence the legislative and regulatory landscape for U.S. employers as we enter 2012. The last year saw limited legislative activity affecting employers, with most states addressing far more urgent budgetary and legislative priorities. The statutes passed have had a mixed impact on employers: in some states, legislation was passed to make it harder for employees to claim unemployment compensation, while in other states legislation was passed that tightens the statutory burden on employers. Two trends of note: more states are adopting “wage theft” legislation and expanding protected classes of employees to encompass gender identity.

At the federal level, most activity was concentrated in the pro-union National Labor Relations Board (NLRB), which spent a good part of 2011 altering union representation election rules, attempting to limit employer-required individual arbitration and otherwise pandering to unions at employers’ expense. Additionally, legislation intended to further regulate the financial services industry has established a bounty for whistleblowers, further impinging on employers. Federal courts also made significant new case law in 2011 affecting core employment issues including class actions and arbitration clauses.

As a resource to our clients, the Labor and Employment team at K&L Gates has summarized key law changes of the past year affecting employers in 2012 from the federal standpoint as well as in certain key states in which we are located.  Go here for the full article and presentation by JDSupra.

 

May We Puleeeze Now De-Fund The NLRB?

I was asked this week by several of you to re-post this piece from last fall…Here you go.  I’d like to write “enjoy” or something to that effect, but with the recent recess appointments, that may be unlikely…Jim.

The National Anti-Labor Relations Board.

The National Labor Relations Board is dismissive, and needs to be dismissed. The NLRB may be under the national spotlight once again on June 14, 2011 when an NLRB administrative law judge will hear a complaint issued by the NLRB charging Boeing with unfair labor practices. Boeing is attempting to build the new 787 Dreamliner in South Carolina, and the IAM and the NLRB are not too happy about it. How’d we get this NLRB and what else should you know about their recent actions prior to being propagandized in about a month?

Let’s look at some facts regarding the Boeing situation you won’t find often reported.  Then let’s take a look at the recent anti-business decisions being ruled upon by the NLRB.  Lastly let’s examine the NLRB’s case load, and the taxpayer funding of this “protective” agency.

The NLRB was established to hear cases involving unfair labor practices.  The National Labor Relations Act of the Wagner Act of 1935 guaranteed employees the right to organize, choose representation, and bargain collectively or to choose not to do these things. The act made it illegal for employers and labor unions to interfere with these rights, and the NLRB was established for enforcement. This was good in 1935; and yet today there are pillars of decency within the act that are not being embodied by the NLRB who is charged with enforcement.

What you might not know about the Boeing case is that NLRB General Counsel Lafe Solomon is dismissing the rights of Boeing, as well as the rights and votes of the Boeing employees in South Carolina.  Further, he has dismissed years of established law, and yesterday attempted to dismiss Boeing’s right to discuss the matter in public.

• Peter Schaumber, the former chairman of the National Labor Relations Board disagrees with the NLRB’s complaint against Boeing calling it a stretch.
• NLRB regional director Richard Ahearn said “it would have been an easier case for the union to argue if Boeing had moved existing work from Everett, rather than placing new work in Charleston.”  According to the Seattle Times, he was unable to point to any precedent showing Boeing actions violated the law, and yet he wrote thiscomplaint.
• Boeing workers in South Carolina voted to decertify the IAM in September of 2009. Voted Out.
• The Acting General Counsel Lafe Solomon of the NLRB did not lawfully hold the office of Acting General Counsel at the time he directed that the Complaint originally be filed.
• Boeing has two commercial aircraft assembly plants in the Puget Sound area; Renton, WA which makes 737s, and Everett, WA that makes the 767 tankers, 777s, 787s, and 747s. Both will be busy adding roughly 2,000 jobs.  The new work in SC is small by comparison but it has the Machinists union (IAM) worried, because it’s competition.  The IAM doesn’t want competition.
• Boeing has ceased to be a Seattle-centric company, and started to become a national company. No loyalty to the Puget Sound area means the machinists monopoly is faltering.  The IAM is not concerned about Airbus, Russian, or Chinese competition while Boeing is.

The NLRB has been aggressively dismissing the law, precedent, the rights of the states, voters, evidence, and employers while allowing and encouraging union intimidation of employees and employers. Oh, and this is just the month of April, 2011.

April 28, 2011.  Dismiss voter rights & allow intimidation.

A three-member panel of the NLRB (Chairman Liebman and Members Becker and Hayes) unanimously dismissed an employer’s claim that a union representative sitting in a parked car, visible to employees entering and leaving the employer’s facility to vote, constituted objectionable election conduct. In C & G Heating and Air Conditioning, Inc., 356 NLRB No. 133.

April 26, 2011.  Dismiss the rights of the states.

NLRB Acting General Counsel Lafe Solomon has announced his intent to file lawsuits in Arizona and South Dakota tonullify those states’ constitutional amendments that preserve secret ballot elections.

April 26, 2011.  Dismiss the evidence.

Although the legal standard involving Section 8(a)(1) allegations was not in dispute, there was a significant factual disagreement. When the dust settled, the administrative law judge and the Board majority accepted the employees’ version of events.  The majority stated that there was no evidence that the group disturbed the handful of patrons present, blocked the ingress or egress of any individual, was violent or caused damage, or prevented any employee from performing his work. Thus, the activity remained protected at all times.  This case underscores the importance of the credibility of witnesses and the cohesion of each witness’ version of the events.

April 14, 2011.  Dismiss precedent.

The NLRB’s Office of the General Counsel has issued a new memorandum outlining the categories of cases that must be submitted to the agency’s Division of Advice.  Acting General Counsel (GC) Lafe Solomon has indicated that the current list, which was last updated in 2007, needs to be revised on account of the new agency and court decisions, as well as policy issues that have emerged in recent years.  The revised list provides some insight into the nature of cases the GC considers being of particular importance from a policy standpoint. It also reflects current areas of the law where the GC may be seeking to overturn existing precedent or decisions issued by the Board during the previous presidential administration.

April 04, 2011.  Dismiss the votes and rights of employees.

In Jurys Boston Hotel, 356 NLRB No. 114 (March 28, 2011), the National Labor Relations Board held that the existence of three unenforced but overbroad rules in the employer’s handbook required the setting aside of election results in which employees had voted to decertify their union. This decision makes it easier for unions to argue that overbroad handbook policies affected election results.  Of equal importance, the decision casts doubt on the effectiveness of disclaimer language in which an employer advises employees that “they have rights under the National Labor Relations Act which supersede any possible interpretation of the rules in the handbook.”

April 01, 2011.  Dismiss the law.

In Longview Fibre Paper & Packaging, Inc. (March 9, 2011), the Board ruled that an employer violated Section 8(a)(1) of the NLRA and engaged in objectionable conduct during a union campaign through its statements to employees regarding the status of certain terms and conditions of employment.  While a stand-alone statement that mandatory subjects (such as PTO and wages) are “subject to negotiation” is not itself unlawful, the Board found such statements to be unlawful in this case.

The NLRB needs to be defunded & dismissed.

The NLRB is not independent and has become so rife with duplicitous actions that they are unable to protect workers from either employers or unions.  The purpose of the NLRB is to:

• Conduct elections.
• Prevent and remedy unfair labor practices by both employers and unions.

It is time to refocus the NLRB’s effort upon the stated mission by reducing the funding commensurate with the NLRB’s caseload.  With funding aligned to caseload, the extracurricular partisan activities would be reduced, and the appropriate role of the NLRB acted upon.

• From 2001 to 2010, the number of petitions filed at the NLRB dropped from 4145 to 2380 (43%).
• Elections over the same period dropped from 2645 to 1571 (40%).
• Charges filed dropped from 28,124 to 23,523.
• Actual complaints from those charges dropped by 44% over the decade.

Despite these facts, the NLRB continues to ask for and receive more money and staff.  They seek to expand FY 2010 staffing levels from 1632 to 1730 in FY 2012.  As the NLRB caseload has decreased since 2001, the NLRB’s budget will have increased by $71.2M over the same period.

As the federal budget for FY 2012 is debated, those debating need to recognize that the NLRB is not supportive of employees or employers.  Congress should, through reduced funding keep the NLRB on the tracks they were designed to be upon as originally defined.  When speaking to a group recently about this matter, I was asked “Why do you care about this Jim?”  My response was: “Because my job as an outplacement guy is to help American workers find jobs, and the NLRB is making those jobs even more scarce.