Obama Ignores Senate Republicans, Uses Recess Appointment to Place Embattled Union Lawyer Craig Becker on NLRB

March 29, 2010 - 2:52 PM
Becker, the attorney for the SEIU and the AFL-CIO, had been blocked for confirmation on Feb. 9, when all 41 Senate Republicans and two Senate Democrats voted against his nomination.
(CNSNews.com) – Flouting Senate Republicans, President Obama used his constitutional authority to make recess appointments on Saurday and placed two Democratic nominees -- union lawyer Craig Becker and labor attorney Mark Pearce -- on the National Labor Relations Board.
 
Becker, the associate general counsel for both the Service Employees International Union and the AFL-CIO, had been blocked for confirmation on Feb. 9, when all 41 Senate Republicans and two Senate Democrats, Sens. Ben Nelson (D-Neb.) and Blanche Lincoln (D-Ark.), voted against removing a filibuster against his nomination. 

The Pearce nomination was considered less controversial, and Senate Republicans had offered to approve Pearce, a former union attorney in private practice, if Becker’s name was withdrawn. A third nominee, a Republican, was not appointed.

“The United States Senate has the responsibility to approve or disapprove of my nominees. But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis,” Obama said in a statement released Saturday by the White House. 

Becker and Pearce were two of 15 recess appointments the president made Saturday, the day after Congress left Washington for its Easter recess.

But the Becker appointment was widely seen as a slap in the face to the entire Senate Republican Conference, which sent a letter last week to the president calling on him not to circumvent the Senate by making an appointment while Congress was away on Easter recess. 

Sen. John McCain (R-Ariz.), who, with Sen. Orrin Hatch (R-Utah), led Senate opposition to Becker, said he was “very disappointed” that the president chose to appoint Becker to the NLRB post while Congress was in recess.

“The U.S. Senate rejected this highly controversial and partisan nominee, and once again the administration showed that it had little respect for the time-honored constitutional roles and procedures of Congress,” McCain said in a statement issued Saturday. “This is clear payback by the administration to organized labor.”

Organized labor lauded the president for doing an end-run around the Senate. 

“The appointment of Becker and Pearce to the NLRB is a major step towards renewing access to justice for America's workers,” AFL-CIO spokesman Josh Goldstein told CNSNews.com.

“For more than two years, the NLRB has been crippled by its unnecessary vacancies, leaving working families at a major disadvantage. The hardworking people who make this country run deserve better.”

Employers groups, who opposed Becker’s nomination, warned of the repercussions. 

“This recess appointment disregards the Senate’s bipartisan rejection of Craig Becker’s nomination to the NLRB,” Katie Packer, president of the Workforce Fairness Institute, told CNSNews.com. 

“Overriding the will of the Senate and providing this special interest payback contradicts the President’s claim to change the tone in Washington. The business community should be on red alert for radical changes that could significantly impair the ability of America’s job creators to compete.” 

Biased or Well-Qualified?
 
Becker is the first attorney to be appointed to the board while still working directly for a union. He currently serves as associate general counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations (AFL-CIO).

A summa cum laude graduate of Yale, Becker has practiced and taught labor law for 27 years, serving as a law professor at UCLA, University of Chicago and Georgetown law schools. 

But in their letter, the GOP senators said Becker never sufficiently answered questions posed to him by Republican members of the Health Education Labor and Pensions (HELP) Committee – especially Sens. John McCain (R-Ariz.) and Orrin Hatch (R-Utah.)

“Time and again questions have been raised over Mr. Becker's ability to serve in an honest and impartial manner on the NLRB, yet this administration chose to ignore the questions and concerns and instead forced their will on the American people," McCain said.
 
McCain and Hatch say that Becker won’t give clear answers about whether, as a member of the president’s transition team, he helped draft President Obama’s pro-union executive orders shortly after the inauguration -- even though he was still an employee of the SEIU.
 
When asked by Sen. Hatch during his confirmation hearing if he was “involved or responsible in any way” for the executive orders, Becker responded: “As a member of the Presidential Transition Team, I was asked to provide advice and information concerning a possible executive order of the sort described. I was involved in researching, analyzing, preliminary drafting, and consulting with other members of the Transition team.”
 
Becker is also known for writing that employers should be barred from placing observers at the polls to challenge union ballots -- and should have no right to be heard in unfair labor practices cases.
 
In a 1993 article in the University of Minnesota Law Review, “Democracy In The Workplace: Union Representation. Elections And Federal Labor Law,” the then-UCLA professor wrote (pages 451-453): “On these latter issues employers should have no right to be heard in either a representation case or an unfair labor practices case, even though Board rulings might indirectly affect their duty to bargain.”
 
He also wrote. “(E)mployers should neither have legal standing as parties to the representation proceeding nor have rights tantamount to those of candidates in union elections”
 
The abstract for the article states: "(T)his Article illuminates fundamental differences between the systems of political and labor representation. In light of these differences, it concludes that employers should be stripped of any legally cognizable interest in their employees' election of representatives."
 
Becker has also stated that his opinion that the Employee Free Choice Act, which would allow workers to form a union, simply by signing a union card -- could be implemented as an administrative matter by the NLRB.

“Craig Becker stands far outside the mainstream of NLRB nominees,” Hatch said. “There is no place on this powerful board for someone who believes that card-check legislation – getting rid of the secret union ballot – can be enacted surreptitiously through regulation.”

The AFL-CIO’s Goldstein dismissed the Senate Republican response. 

“Cynical attempts to paint them as biased or radical could not be more dishonest. They are both highly qualified and respected experts,” Goldstein said.

“For eight months the Republican minority blocked these nominations and hypocritically condemned the use of recess appointments ignoring the fact that Bush did so seven times to the NLRB. Putting the NLRB back on track to being a fully functioning Board is a big win for working families,” he added.

Meanwhile, attorneys for the National Right to Work Legal Defense Council say they are filing motions in 12 pending cases they are involved in seeking Becker to step aside and "recuse" himself from participating in the decisions because of his public advocacy of union positions on those issues.