Senate Committee Approves Radical Obama NLRB Nominee; Filibuster Likely

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NLRB's Peter Schaumber and Wilma LiebmanTo many of its critics, the National Labor Relations Board might well be renamed the National Organized Labor Relations Board. That's because this ostensibly impartial federal adjudication body frequently has displayed a discernible pro-union tilt. President Obama is primed to push the NLRB further in that direction given that fully three positions on the five-person board are now vacant. Of the nominees who face final confirmation to fill those slots, by far the most controversial is Craig Becker, approved by the Senate Committee on Health, Education, Labor and Pensions this past Thursday by a 13-10 margin. As associate general counsel to the Service Employees International Union (SEIU) and the AFL-CIO, and as a well-published law professor, Becker has amassed a substantial track record of union partisanship. He's also shown himself, though less than readily, to be an ally of the radical and shady nonprofit network, the Association of Community Organizations for Reform Now, or ACORN.  Those are reasons why a filibuster is a very real possibility, especially now that the GOP has the necessary 41 votes to muster one. 

NLRB was set up as part of the National Labor Relations Act (NLRA), the basis for private-sector collective bargaining in this country for 75 years. The five-member board, as a matter of political custom, consists of at least two members from each major party, resolving NLRA-related disputes among unions, employers and employees. The board, each member of which serves a five-year term, also receives assistance from its general counsel, whose appointment runs four years. The NLRB, with four divisions and more than two dozen regional offices, oversees and certifies union elections. It also handles cases on appeal from administrative law courts on issues over representation and unfair labor practices. A "tiebreaker" appointment under this administration by necessity would be a Democrat. Even the two Republicans on the board might not necessarily rule in favor of employers. An aggressive union advocate like Becker thus has the potential to exert major influence.

The two current NLRB members are Peter Schaumber and Wilma Liebman (see photo, left to right). Schaumber, a Republican whose term runs out this August, is a Bush appointee; Liebman, a Democrat and a Clinton appointee, twice was reappointed during the Bush years. They've been a lonely pair lately. President Obama intends to give them company - for the most part, his kind of company. His nominees are Mark Pearce, Brian Hayes and Craig Becker. Pearce, a Democrat, is a longtime New York-based union attorney. Hayes, a Republican, is a Senate staffer. Pearce and Hayes last year won unanimous approval by the Senate Labor Committee, though their nominations have yet to come up for a floor vote.

The reason for the delay has been the pending third addition, Craig Becker, now the subject of national attention. The Yale-educated Becker, who has taught law at UCLA, Chicago and Georgetown, and has argued many cases at the U.S. Circuit and Supreme Court levels, was named by the White House in April 2009 to fill the seat of retiring member Dennis Walsh. Last October the full committee approved his nomination by a 15-8 margin, but the action stalled. Sen. John McCain, R-Ariz., troubled by a U.S. Chamber of Commerce expose of Becker's views, placed a "hold" on the nomination, indefinitely preventing a floor vote. This past Tuesday, February 2, the Labor Committee held another confirmation hearing. As before, the nominee's answers raised questions. At one point, McCain asked Becker: "Do you perform work for and provide advice to ACORN or ACORN-affiliated groups while employed by your current employers on a volunteer basis?" The nominee's response: "Senator McCain, I have never done so."

Yet evidence indicates Becker has counseled SEIU Local 880, the roughly 80,000-member Chicago-based home and health care workers union which last spring merged with another union bargaining unit, SEIU Healthcare Illinois and Indiana. The union was founded as an ACORN project some 30 years ago and affiliated with the SEIU during the mid Eighties. The address listed on its most recent U.S. Labor Department annual financial disclosure form is 209 West Jackson Avenue, Suite 200, Chicago, Illinois. That's the same building as the national headquarters of ACORN Housing Corporation, an ACORN affiliate.  Rep. Mark Kirk, R-Ill., among other members of Congress, last year presented extensive evidence that SEIU Local 880/Healthcare Illinois and Indiana for years has functioned as a money-laundering operation for ACORN funds

So what was Becker's role? According to a story appearing in the Wall Street Journal last October, he admitted that during the tenure of now-deposed Illinois Democratic Governor Rod Blagojevich he (Becker) provided "advice and counsel to SEIU relating to proposed executive orders and proposed legislation giving homecare workers a right to organize and engage in collective bargaining under state law." ACORN founder and longtime chief organizer Wade Rathke, given the boot in 2008 for allegedly having covered his brother Dale's embezzlement of nearly $950,000 in ACORN funds, puts his admiration for Becker this way: "For my money, Craig's signal contribution has been his work in crafting and executing the legal strategies and protections which have allowed the effective organization of informal workers, and by this I mean home health-care workers." That's SEIU Healthcare Illinois and Indiana he's talking about.    

The SEIU-ACORN connection runs national, too, especially in the area of finances. According to annual disclosure data submitted to and available online from the U.S. Labor Department (www.unionreports.gov), organized labor during 2005-08 donated a combined $8,618,092 to the New Orleans-based nonprofit community organizing network. The Service Employees accounted for $4,019,606 of this total, or almost half. ACORN founder Rathke, who still runs the New Orleans-based SEIU Local 100, termed Becker's nomination last April as "a big win no matter how you shake and bake it." 

But it isn't just the company that Becker keeps that has his critics alarmed. It's also his conviction that the National Labor Relations Board ought to muzzle employers in labor disputes. He wrote in a 1993 article, "Democracy in the Workplace:  Union Representation and Federal Labor Law," appearing in the Minnesota Law Review, that employers have no "cognizable" interest in the outcome of union organizing drives and elections. He observed:

Similarly, employers should have no right to raise questions concerning voter eligibility or campaign conduct. Because no employers have no right to vote, they cast no ballots the significance of which can be diluted by the inclusion of eligible employees...Because employers lack the formal status either of candidates vying to represent employees or voters, they should not be entitled to charge that unions disobeyed the rules governing voter eligibility or campaign conduct. On the questions of unit determination, voter eligibility and campaign conduct, only the employee constituency and their potential union representatives should be heard.

Becker isn't that big on an individual worker's right not to join a union either. "Just as U.S. citizens cannot opt out against having a congressman," he notes, "workers should not be able to choose against having a union as their monopoly-bargaining agent." It's hardly a stretch to assume he would apply this dictum to workers in the 22 states with Right to Work laws designed to protect employees from such coercion.

There's no way to spin it nicely: Becker opposes putting business and labor on a level legal playing field. If his perspective were to serve as the basis for NLRB rulings, unions would gain an almost unlimited ability to intimidate dissenting employers and employees. It is difficult to imagine even the broadest interpretation of NLRA statutes as advocating such a transfer of power. Yet to Craig Becker - and his employer, SEIU President Andrew Stern - unions should be legally immune from being opposed. In their world, boosting union membership and political clout is what counts most.

Having won committee approval in a close vote, Becker's nomination now goes to the full Senate floor. President Obama and Senate Democrats have expressed a desire to place Becker, Pearce and Hayes together in the approval vote, thus reducing scrutiny of Becker. Senate Republicans, in response, are in the talking stages of planning a filibuster. Sen. Scott Brown, R-Mass., fresh from being sworn in last week, has expressed his willingess to block Becker's appointment. Nobody in the GOP really wants to keep Pearce and Hayes in limbo.  But since they're part of a three-for-one package deal, such a tactic in their eyes is necessary to keep Becker off the NLRB.  

In a larger sense, the pending floor fight, expected to occur this week, is a mandate on the Obama presidency. Obama, like Becker, originated from the same intersection of labor and community organizing. Obama's White House political director, Patrick Gaspard, came up from the ranks of SEIU and ACORN. Becker's presence on the NLRB would signal a further triumph for Obama's overarching progressive-Left vision. For Republicans and even some Democrats, the vision is suspect.   

Related:

SEIU Disavows ACORN, but Long History of Ties Won't Go Away.