Is NLRB Acting General Counsel’s Alleged Lawbreaking Being Investigated?

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Cause of Action Demands Answers From NLRB On Ex Parte 


This past spring, Republican National Labor Relations Board (NLRB) member Terence Flynn was effectively drummed out of the agency. For months prior to Mr. Flynn’s May 26 announcement that he would resign from the powerful five-member board, union officials and congressional Democrat politicians allied with them had been calling for his head.

In pushing for Mr. Flynn’s ouster, Big Labor pointed to a March 2012 finding by NLRB Inspector General (IG) David Berry that he had committed “ethics violations†by “improperly revealing confidential details on the status of pending cases,†as the AP’s Sam Hannanel explained in a May 27 report.

One of Mr. Flynn’s supposed “leaks†was to Peter Schaumber, a former NLRB chairman and a sometime advisor to Mitt Romney’s presidential campaign.

Mr. Flynn contended his communications with Mr. Schaumber and others did not reveal any confidential information and were not improper. Mr. Berry argued otherwise. But if the “leaks†of Mr. Flynn warranted, in Mr. Berry’s view, an investigation and a stern rebuke, what of the apparent ex parte communications in 2011 between Acting General Counsel Lafe Solomon and then-NLRB Chairman Wilma Liebman?

Mr. Solomon is an unabashed partisan of monopolistic unionism whom President Obama installed as the NLRB’s top lawyer in June 2010 without the U.S. Senate’s advice or consent. In the spring of 2011, Mr. Solomon ignited a public-policy firestorm by filing a complaint against Boeing for initiating a second Dreamliner 787 aircraft production line in Right to Work South Carolina. Boeing had no right, he contended, to expand production in a Right to Work state so as to cut the cost to customers, employees and shareholders of the destructive strikes that International Association of Machinists (IAM) union bosses had repeatedly instigated at the company’s West Coast facilities over the years.

The Boeing case was dismissed at the end of 2011, but not before IAM bosses had squeezed as much negotiating leverage out of it as they could.

Moreover, Mr. Solomon has threatened to use the same novel theory he concocted in the Boeing case against independent-minded employees in other states and industries. And he may well have violate NLRB ethics rules when he was pursuing the Boeing case.

This April, a Freedom of Information Act (FOIA) request by the group Cause of Action uncovered evidence that Mr. Solomon had communicate with Ms. Liebman, a former Teamster lawyer elevated to the NLRB chairmanship in early 2009, about his media strategy in the Boeing case. At that time, Wilma Liebman headed the board to which Lafe Solomon could be expected to bring his complaint eventually.

Though the heavy redactions of the substance of the e-mails provided in response to the FOIA make it impossible to say for sure, it seems they constitute improper ex parte communications between Ms. Solomon and Ms. Liebman. It’s rather like a prosecutor and a judge coordinating their messages for the media in an ongoing case.

If Terence Flynn’s purported “leaks†were a serious enough violation for him to be driven from office, Lafe Solomon’s tenure as acting general counsel should also surely end now if he engaged in ex parte communications with Wilma Liebman. Yet on September 11 Cause of Action reported that Mr. Berry had yet to confirm that a probe into the very serious allegations against Mr. Solomon had even been launched.  (See the link above for more information.)

Is Lafe Solomon being held to a lower standard due to his pro-forced unionism zealotry? As month after month goes by with no indication he is being held accountable, it’s hard to draw another conclusion.