BNA Daily Labor Report: GOP Senators Oppose Becker Renomination, Citing NLRB Actions

February 8, 2011: All 47 Republicans in the U.S. Senate submitted a letter to President Obama objecting to his renomination of attorney Craig Becker to fill the remainder of a five-year term as a board member ending Dec. 16, 2014, and asking Obama to “respect the will of the Senate” by withdrawing the nomination.

Becker's July 2009 nomination failed in the Senate when a February 2010 cloture motion to end debate on the nomination fell eight votes short of the 60 needed to proceed to a final vote. But Obama gave Becker a recess appointment that allows him to serve until the end of the Senate's 2011 session, and then renominated him Jan. 26 for the remainder of a five-year term.

The senators in the Feb. 1 letter reminded Obama that many of them urged him not to make the recess appointment. They said that Becker's 10 months of service on a recess appointment “has not alleviated our concerns,” citing several actions in which he joined with other Democratic members of the board.

Two-Year Controversy Over NLRB Selection

Obama originally announced his intention to nominate Becker in April 2009 and sent his name to the Senate on July 9, 2009 (131 DLR A-18, 7/13/09), but the nomination encountered significant opposition in the Senate, culminating in the failed cloture vote.

Forty-one Republican senators signed a March 2010 letter to Obama urging him not to recess appoint Becker, who had served as associate general counsel for the Service Employees International Union since 1990 and an AFL-CIO staff counsel since 2004 (57 DLR A-9, 3/26/10). Asserting that previously Becker had published “highly controversial writings” on labor law, the senators also questioned Becker's “judgment, as well as his objectivity” after he explained his plans for recusing himself from board consideration of certain cases involving the AFL-CIO, SEIU, and SEIU local unions.

But on March 27, 2010, Obama gave Becker a recess appointment that allows him to serve until the end of the Senate's 2011 session (59 DLR AA-1, 3/30/10). Becker was sworn in on April 5, 2010 (66 DLR AA-1, 4/8/10). The board currently has a 3-1 Democratic majority, consisting of Chairman Wilma B. Liebman, Member Mark Gaston Pearce, and Becker. Brian E. Hayes is presently the only Republican member, but Obama recently nominated NLRB lawyer Terence F. Flynn (R) Jan. 5 to join the board (3 DLR A-11, 1/5/11).

Republican Senators Remain Opposed

The White House sent Becker's renomination to the Senate along with the names of 37 other individuals who were nominated but not confirmed for various offices during the 111th Congress. Republican senators responded to the NLRB nomination within a few days, urging Obama to withdraw Becker's name.

The latest letter, signed by all 47 Republican senators, said, “We were disappointed that you chose to put Mr. Becker on the Board by recess appointment even after the Senate voted against advancing his nomination” in 2010.

According to the GOP senators' letter, Becker “led the Board to re-open and reverse settled decisions, made discrete cases a launching point for board changes to current labor law, and used an 18 year-old petition to initiate a rulemaking proposal that likely exceeds the Board's statutory authority.”

The lawmakers said that after reviewing Becker's writings and considering his testimony at a Senate Health, Education, Labor, and Pensions Committee hearing, senators had opposed Becker's nomination during 2009 and 2010 because of his “record of supporting an expanded role for the NLRB beyond current law without Congressional authorization and his multiple conflicts-of-interest” as a former SEIU and AFL-CIO lawyer. Becker's time on the board as a recess appointee “has not alleviated our concerns,” the Republican senators wrote.

Letter Cites NLRB Actions Since Recess Appointment

According to the letter, Becker “led the Board to re-open and reverse settled decisions, made discrete cases a launching point for board changes to current labor law, and used an 18 year-old petition to initiate a rulemaking proposal that likely exceeds the Board's statutory authority.”

After Becker, Pearce, and Hayes were sworn in as board members in the spring, the board had, for a time, three Democrats and two Republicans, including former Member Peter C. Schaumber, whose term ended Aug. 27, 2010. The board decided a number of cases by 3-2 votes, with a majority consisting of Liebman, Becker and Pearce. Since Schaumber's departure, the board has issued a number of 2-1 or 3-1 decisions in which Democrats formed a majority and Hayes cast a dissenting vote.

But the letter did not cite any specific cases or offer specific support for the proposition that Becker “led” the other board members.

Becker and other board members approved a notice of proposed rulemaking that would require every employer subject to the National Labor Relations Act to post a notice informing employees of their NLRA rights, acting on a petition for rulemaking filed in 1993 (244 DLR AA-1, 12/21/10). Hayes dissented from the rulemaking proposal, noting that the NLRA does not expressly authorize the board to require such a notice posting by employers.

In objecting to renomination of Becker, the senators also said that “the NLRB is threatening four states with lawsuits based on constitutional provisions protecting secret-ballot union elections that were adopted by voters of those states.”

The reference is to letters sent to the attorneys general of Arizona, South Carolina, South Dakota, and Utah by the board's acting general counsel, Lafe E. Solomon, informing the states that their adoption of constitutional “secret ballot amendments” was preempted by the NLRA. Solomon wrote that he was authorized by the board to file lawsuits challenging the state measures if necessary; his letter did not disclose whether the authorization by board members was a unanimous decision (10 DLR AA-1, 1/14/11).

After the state attorneys general submitted a response to his letter, Solomon sent a second letter indicating that NLRB is willing to explore possible resolutions of the disputes with state government (23 DLR AA-1, 2/3/11).

In reviewing Becker's time as a recess appointee, the senators' letter also said NLRB has “ignored provisions in other states that conflict with federal law but benefit unions over employers.” However, the letter did not cite the state laws in question, or identify either the action by NLRB officials that was referred to or Becker's role in such events.

The letter also asserted that during a Senate hearing on his nomination in February 2010 (21 DLR A-15, 2/3/10), “Mr. Becker assured Senators … that he would recuse himself from any Board matter in which his previous union employers were a party, for at least two years.” But he later refused to recuse himself in 12 cases involving the unions he had worked for, the letter said.

Becker wrote in SEIU, Nurses Alliance, Local 121RN (Pomona Valley Hosp. Med. Ctr.), 355 N.L.R.B. No. 40, 188 LRRM 1089 (2010) (110 DLR A-1, 6/10/10), that the pledge “does not require me to recuse myself from all cases in which local unions affiliated with the SEIU are parties” unless he represented the particular local during the two years prior to becoming a member or an SEIU attorney represented a local during Becker's first two years on the board. But the senators wrote that “[d]isregard for the NLRB's appearance of impartiality is of great concern.”

Writing to Obama that the “mission of the Members and staff of the NLRB is to enforce current law,” while “changes to statutory law” are the responsibility of Congress, the Republican senators asked Obama to withdraw Becker's nomination, stating they “would be pleased to work with you to identify a replacement nominee capable of receiving swift confirmation.”

Individual Republicans Voice Opposition

Sen. Johnny Isakson (R.-Ga.) issued a Feb. 2 statement that he is a “strong opponent” of Becker's nomination, expressing “concerns that he would use his position on the [NLRB] to manipulate the federal regulatory process, compromise fairness and grant favors to the labor unions that formerly employed him.”

Sens. Orrin Hatch (R-Utah) and Michael Enzi (R-Wyo.) both issued Feb. 3 statements. Hatch said that the Senate failed to support Becker's nomination last year because of “serious concerns” about his impartiality. “These questions have not been resolved and, if anything, it is more clear now that Mr. Becker is more interested in furthering a pro-union political agenda than in upholding our national's labor laws.”

Over the past 10 months, Becker “has made his intention and bias clear,” Enzi said. “The NLRB is meant to be an impartial authority ensuring organizing freedom in the workplace,” he said, “not a politicized institution bent on increasing unionization rates at the cost of American jobs.”

House Republicans on the Education and the Workforce Committee issued a Feb. 3 post on their “Secret Ballot Watch” web page noting with approval the action by Republican senators. The post continued that Becker had “written and supported board decisions that favor Big Labor over the interests of rank-and-file workers,” and concluded “the president should follow the lead of Republicans in Congress and focus his efforts on protecting jobs for America's workers—not protecting Craig Becker.”

Requests Feb. 7 for comment from NLRB, AFL-CIO, and SEIU were not immediately returned.

Law Professor Questions Assertion Becker ‘Led' Board

Jeffrey Hirsch, associate professor of law at the University of Tennessee, questioned the senators' characterization of Becker as leading the NLRB into some of the decisions it has made in the past 10 months. Hirsch observed that Becker dissented from a ruling in Humane Society of Seattle/Kings County, 356 N.L.R.B. No. 13, 189 LRRM 1440 (2010), in which Liebman and Pearce were in the majority on an election objection issue, while Becker was in the minority in Wheeling Island Gaming Inc., 355 N.L.R.B. No. 127, 189 LRRM 1422 (2010), in which Liebman and Schaumber outvoted him on a bargaining unit issue.

Noting that many of the cases addressed by the board during Becker's recess appointment were pending long before Becker was sworn in, Hirsch said Becker is only one voice on the board.

Commenting that Liebman and Pearce have their own views and that Liebman in particular is “no shrinking violet,” the law professor said it is difficult for those outside NLRB to assess the influence of any one member on the board as a whole.

By Lawrence E. Dubé. Published in the BNA Daily Labor Report

Text of the Republican senators' letter to Obama may be accessed here.

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