Since those controversial “recess” appointments that kicked off the new year it’s been quiet over at the NLRB — almost too quiet – but not anymore. On March 15, the U.S. Chamber of Commerce asked the Court of Appeals to add its recess appointment challenge to an appeal of a Board ruling against a small bottling company in Washington State, Noel Canning. The Chamber will challenge the constitutionality of the President’s emergency “recess” appointments, arguing in part that the appointments denied the Senate’s Constitutional right to review all candidates. Ironically, the one “recess” appointee the Senate did have the opportunity to vet, Republican Terence Flynn was accused last week of breaches of ethical conduct by an internal Board investigation. As a result, Flynn could lose his appointment. Flynn was first nominated to the Board by Obama in January of 2011, only to have his nomination stall for a full year until his emergency appointment two months ago. Up until December 2011, Flynn served for six years, first as chief counsel to Board Chair Peter Schaumber and then Board Member Brian Hayes. Flynn is accused of passing along insider information about cases to Schaumber, now an advisor to the Romney campaign, and former Board member Pete Kirsanow, now a labor attorney who represents the National Association of Manufacturers. (NAM recently sued the NLRB challenging the poster rule.) Flynn is accused of emailing information to Schaumber and Kirasnow about specific cases including attorney assignments, where cases stood within the agency and the public stance Board members would take. “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. All eyes now turn to Attorney General Eric Holder on what happens to Flynn next. The greatest mystery remains how the White House remained unaware of the investigation of Flynn before the emergency appointment in January. Meanwhile, a memo has gone out from the Office of the General Counsel to the Board’s regional offices to prepare for “train the trainer” sessions in mid-April on the following seven changes to Board procedures: (1) Stating that the purpose of a pre-election hearing is to determine if a question concerning representation exists; (2) ensuring that pre-election hearing officers can limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a QCR; (3) giving pre-election hearing officers discretion to permit the filing of post-hearing briefs; (4) eliminating the parties’ right to file a pre-election request for review and deferring that review until after the election; (5) removing the prohibition of scheduling elections sooner than 25 days after a decision and direction of election; (6) narrowing the circumstances under which a request for special permission to appeal to the Board will be granted; and (7) providing that all post-election hearing officer reports will be directed to the Regional Director and reviewed by the Regional Director on the filing of exceptions followed by a supplemental decision to the Board which is reviewable by a discretionary Request for Review.
