It’s hard not to sympathize with organized labor—at least to some extent. After all, during the 2008 elections, unions donated roughly half a billion dollars to Democrats, and so far have few legislative victories to show for their efforts; the Employee Free Choice Act (EFCA), the Respect Act, and the Public Safety Employer-Employee Cooperation Act have all stalled in Congress.
Union leaders were further outraged by last month’s bipartisan Senate vote against Craig Becker, President Obama’s nominee to the National Labor Relations Board (NLRB). Rather than accept another setback, however, Big Labor and its partisan allies in the White House are going on the offensive: Obama is planning to use a recess appointment to place Becker on the NLRB. Doing so would not only disregard the Senate’s constitutional responsibility of advice and consent, but, according to all 41 Senate Republicans, would “institute far-reaching changes in labor law policy far exceeding the Board’s authority and by-passing the role of Congress”—changes that, coincidentally, happen to mirror organized labor’s stalled legislative agenda.
The fact that Obama must resort to a recess appointment for Becker is itself a sign of weakness. When Becker was nominated in 2009, Democrats held 60 seats, a filibuster-proof majority. Yet Becker’s confirmation mustered only 52 votes for cloture in February, leaving him in limbo. Sens. Blanche Lincoln (D–AR) and Ben Nelson (D–NE) both voted against Becker.
With the loss of an additional Senate seat to Scott Brown (R-MA) and the growing unlikelihood of Becker’s confirmation, Senate Majority Leader Harry Reid (D-NV) has changed his tune on recess appointments. Reid went to great lengths to block President George W. Bush from making recess appointments by keeping the Senate in pro forma session. Now, however, Reid says, “What alternative do we have?” If organized labor’s agenda is going to be enacted without having to pass through Congress, then the answer is none.
After all, who needs legislation when an ideologically pro-union recess appointee like Becker can change the nation’s labor laws without public scrutiny or congressional review? As Becker notes, labor “reforms” that failed to pass Congress, such as EFCA, can “be achieved with almost no alteration of the statutory framework” (and all the messy debate and public scrutiny that comes with it) by NLRB rulemaking and case-by-case decisions.
A review of his writings, especially his article, “Democracy in the Workplace: Union Representation Elections and Federal Labor Law,” reveals that, if appointed to the NLRB, Becker would change America’s labor laws in ways that even the most labor-friendly legislator could only dream of. For instance, think EFCA’s elimination of the secret ballot via “card check” would hurt employees? Becker doesn’t. In fact, he would extend EFCA’s philosophical foundations to an eye-popping extreme: Becker doesn’t only support “automatic certification by ‘non-electoral means’ (e.g. card check) or eliminating the option of ‘no union’ from the ballot—he would leave employers with “no role in union organizing campaigns and in union representation elections.”
Like EFCA, the RESPECT Act has also failed to garner legislative—let alone public—support. Becker, however, in an article predating the introduction of the RESPECT Act, has signaled that he favors limiting which workers the National Labor Relations Act (NLRA) classifies as supervisors. This limiting would be done, of course, not through Congress and a revision of statutory language but through the NLRB.
Even if Becker’s policies were remotely mainstream, his role as ALF-CIO/SEIU super lawyer, his prior work for Obama, and his associations with ACORN all raise questions about his nomination. Becker is currently associate general counsel for the SEIU, the same position he held when, as part of the Obama transition team, Becker drafted Executive Order 13496, “requiring government contractors and subcontractors to post a Notice of Employees Rights under Federal Labor Laws.” Although Becker claimed he was on “vacation” while working with the Obama transition team, allowing a high-ranking, paid member of organized labor to draft executive orders benefiting (surprise!) organized labor contradicts the President’s pledge to enforce a high standard of government transparency.
And then there is the ACORN issue. Although Becker rejects charges that he has ever done work for ACORN, he did admit he “worked with and provided advice to” SEIU Local 880 in Chicago. Yes, that SEIU Local 880 in Chicago. In fact, ACORN co-founder Wade Rathke has praised Becker for his “contributions.”
Given both Mr. Becker’s radical vision for U.S. labor policy, and his close ties to the current Administration, a recess appointment to the NLRB is grossly inappropriate.