Workforce Fairness Institute

MEET AFL-CIO'S NEW CO-GENERAL COUNSEL
New Position Created For Big Labor's Poster Boy?

“Craig Becker, the former embattled member of the National Labor Relations Board, will become co-general counsel of the A.F.L.-C.I.O., the labor federation announced on Tuesday morning.  Mr. Becker stepped down from the board in December after serving under a recess appointment by President Obama since March 2010.  Senate Republicans had previously blocked his confirmation, saying he was too liberal and too pro-union.  Before serving on the N.L.R.B., Mr. Becker had been associate general counsel to both the A.F.L.-C.I.O. and the Service Employees International Union, with those groups sometimes turning to him to write their most important appellate briefs.” (Steven Greenhouse, “Former N.L.R.B. Member Appointed to A.F.L.-C.I.O. Role,” The New York Times, 5/22/12)

Craig Becker's Ethics Problems

Craig Becker Was A Member Of President Obama’s Transition Team, While He Was On The SEIU Payroll:

“Mr. Becker also won’t give a clear answer about his role in preparing several pro-labor executive orders issued by President Obama shortly after inauguration.  Mr. Becker’s name was found in at least one of the documents, suggesting that he had written it.  When asked by Sen. Hatch if he was ‘involved or responsible in any way’ for these executive orders, Mr. Becker responded: ‘I was not responsible for [the specific executive orders] except as described below.  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.’  In other words, Mr. Becker was the main author but would rather not say so explicitly.  Why not?  Well, perhaps because Mr. Becker seems to have been on the SEIU payroll at the time he did his ‘drafting.’  Many people take leaves of absence from their private jobs when serving on a transition team, but Mr. Becker says he was on ‘vacation.’  And his ‘vacation’ seems to have been sporadic.  ‘My work on the Transition Team was not full time or continuous … When I was not on vacation in order to work on the Transition Team, I continued to perform my regular work for both SEIU and the AFL-CIO.’  The White House has made a public show of banning paid lobbyists from certain Administration jobs, but it let a paid union operative draft government documents benefiting unions.” (Editorial, “Acorn’s Ally At The NLRB,” The Wall Street Journal, 10/15/09)

Becker Signed President Obama’s Ethics Pledge Agreeing To Recuse Himself From Cases Involving His Former Employers:

“After being appointed to the NLRB, Becker signed an ethics pledge that reads in part: ‘I will not for a period of two years from the date of my appointment participate in any matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.’” (Mark Hemingway, “NLRB's Becker Is Already Under Investigation,” Washington Examiner, 7/6/10)

When Asked By Sen. Hatch If He Would Recuse Himself From Cases Involving Previous Clients Becker Answered Yes:

Q: “How will you draw this line if it is a local SEIU chapter, rather than the international, that is the charged or charging party?  Will you recuse yourself from all such cases or draw the line in some other way?” (Senate Hearing, Health, Education, Labor And Pensions Committee, 2/3/10)

A: “I have entered into an ethics agreement with the National Labor Relations Board to fully abide by both of these sets of restrictions.  Moreover, if at any time during my service on the Board a case comes before me relating to SEIU, an SEIU local or any other entity in which recusal is not required by law, by my ethics pledge, or by my ethics agreement, but where the particular circumstances are such that my participation would constitute a conflict of interest, I will recuse myself.” (Senate Hearing, Health, Education, Labor And Pensions Committee, 2/3/10)

Becker Refused To Recuse Himself From Numerous Cases Involving Former Employer

Craig Becker, An Obama Recess Appointee Who Lost Bipartisan Senate Confirmation Vote, Ruled On Cases In Which He Had A Clear Conflict Of Interest:

“In the least surprising news of the week, Craig Becker – Big Labor’s go-to legal expert – has served on the National Labor Relations Board (NLRB) for barely three months, and he’s already under investigation.  Becker lost a bipartisan Senate confirmation vote for the NLRB before Obama gave him a recess appointment.  Becker is so pro-union he previously opined that ‘employers should have no right to be heard’ in cases before the NLRB.  Aside from impartiality, the other concern about Becker was that the former AFL-CIO attorney and associate general counsel for the radical Service Employees International Union (SEIU) and would be embroiled with conflicts of interest regarding unions he’s now charged with overseeing.  Sure enough, on June 2, Becker joined in on an NLRB decision involving SEIU Local 1957 and denied St. Barnabas Hospital’s request to review a union election.  House Committee on Oversight and Government Reform Ranking Member Darrell Issa, R-Calif., asked the inspector general to examine Becker’s conflict of interest in the matter.  An investigation is under way.  After being appointed to the NLRB, Becker signed an ethics pledge that reads in part:  ‘I will not for a period of two years from the date of my appointment participate in any matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.’  When you’ve received numerous paychecks from the nation’s two largest unions, upholding that ethics pledge would mean recusing yourself from an enormous number of disputes that come before the NLRB.  So Becker came up with a novel solution to this quandary – he ignores the ethics pledge.  The NLRB told The Washington Examiner Becker isn’t commenting on the investigation but did pass along a windy ruling Becker authored on recusal motions.  Becker argues it would be appropriate to recuse him from cases involving the national SEIU but not cases involving the local chapters because they are ‘distinct legal entit[ies].’” (Mark Hemingway, “NLRB's Becker Is Already Under Investigation,” Washington Examiner, 7/6/10)

National Right To Work Foundation Filed At Least 13 Motions Noting Becker’s Conflict Of Interest In Cases:

“Since joining the NLRB, the National Right to Work (NRTW) Foundation has filed 13 motions noting Becker’s conflict of interest in cases before the NLRB.  The cases from which Becker did not recuse himself involve significant issues and his former clients, including a case involving the SEIU, for which he did extensive legal work for in the past.  When I asked the NLRB about the issue earlier this year, the board’s spokesman refused to comment except to pass along a lengthy document Becker wrote in response to the recusal motions … In that document, Becker claimed he would have no conflicts of interest in cases involving local chapters of unions whose national organizations he had represented because the former are ‘distinct legal entities’ from the latter.  In fact, SEIU’s constitution says the national union has ‘jurisdiction over its affiliated bodies and all Local Unions.’” (Mark Hemingway, “Will The Craig Becker Of National Labor Relations Board Explain His Conflicts Of Interest?” Washington Examiner, 12/10/10)

Becker Authored Controversial Writings

Becker Wrote Employers Had No Right To Be Heard:

“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 ... Employers have no standing to assert their employees’ right to fair representation.” (Craig Becker, “Democracy In The Workplace: Union Representation. Elections And Federal Labor Law,” University of Minnesota Law Review, 1993, p.451-53)

Becker Stated Businesses Had No “Legal Standing”:

“Such a reconception entails the corollary that employers should neither have legal standing as parties to the representation proceeding nor have rights tantamount to those of candidates in union elections.” (Craig Becker, “Democracy In The Workplace: Union Representation. Elections And Federal Labor Law,” University of Minnesota Law Review, 1993, p.451-53)

Becker Wanted NLRB To Ban Job Creators From Ensuring That Union Elections Were Fair:

“The law leaves the Board discretion to determine the appropriate parties to hearings in representation cases ... If employers are denied party status, it also follows that the Board should revert to its earlier rule, already approved by the Supreme Court, of barring employers from placing observers at the polls to challenge ballots, as such challenges are resolved at post-election hearings.” (Craig Becker, “Democracy In The Workplace: Union Representation. Elections And Federal Labor Law,” University of Minnesota Law Review, 1993, p.451-53)

Becker Argued That Businesses Had “No Right To Raise Questions” Even In Cases Of Unfair Practices By Labor Bosses:

“Similarly, employers should have no right to raise questions concerning voter eligibility or campaign conduct.  Because employers have no right to vote, they cast no ballots the significance of which can be diluted by the inclusion of ineligible employees ... Because employers lack the formal status either of candidates vying to represent employees or of voters, they should not be entitled to charge that unions disobeyed the rules governing voter eligibility or campaign conduct.” (Craig Becker, “Democracy In The Workplace: Union Representation. Elections And Federal Labor Law,” University of Minnesota Law Review, 1993, p.451-53)

Becker Supported Unions Being Able To Initiate Class Action Lawsuits Without Employee’s Consent:

“When the FLSA was amended in 1947 to require individual, written consent in order to benefit from a private enforcement action, Senator Forrest Donnell ... proclaimed, ‘Certainly there is no injustice in that, for if a man wants to join in the suit, why should he not give his consent, in writing ...’  It is the thesis of this Article, however, that such a requirement, imposed on workers whose employer has failed to respect the nation’s minimum labor standards, is not only unjust, but unwise public policy and, as implemented by the courts, incoherent.” (Craig Becker & Paul Strauss, “Minimum Labor Standards,” The Minnesota Law Review, 5/24/2008, p.1319)

Becker Advocated For Unions Threatening “Possibility Of Conflict”:

“Only by guaranteeing the possibility of conflict can the law create the conditions for true cooperation.  The profound, if paradoxical, relationship between conflict and cooperation, strikes and collective bargaining, was central to the vision of industrial relations that animated the passage of the NLRA.  By protecting new forms of collective work stoppages, the law can breathe new life into that vision.” (Craig Becker, “Better Than A Strike: Protecting New Forms of Collective Work Stopages Under The National Labor Relations Act,” 61 University of Chicago Law Review 351, 1994 p.421)

Becker Supported Restraining “Freedom Of Capital” & Believed “Mobility Of Capital” Threatened Labor

Craig Becker Wrote There Ought To Be “Legal Restraint Of The Freedom Of Capital”:

“The right to engage in concerted activity that is enshrined in the Wagner Act – even when construed in strictly contractual terms – implicitly entails legal restraint of the freedom of capital.” (Craig Becker, “Individual Rights And Collective Action: The Legal History Of Trade Unions In America,” Harvard Law Review, January 1987)

Becker Argued Labor Is Threatened Because “The Mobility Of Capital” Has Been “Held Immune From Popular Control”:

“What threatens to eviscerate labor’s collective legal rights, therefore, is less the common law principle of individual liberty than the mobility of capital, which courts have held immune from popular control.” (Craig Becker, “Individual Rights And Collective Action: The Legal History Of Trade Unions In America,” Harvard Law Review, January 1987)

Becker Supported “Employee Free Choice Act” & Legislation “Increas[ing] Government Funding”:

“‘We can envision a meeting of employers and unions in the industry in which they agree that they should act cooperatively to increase government funding and to avoid the waste of scarce resources on bitter election campaigns by permitting employees to decide whether to be represented by a union through a card check, knowing exactly what it will mean if they do, and without employer opposition.  We can envision a no-strike guarantee that goes into effect immediately upon the majority choosing to be represented when the terms of the pre-negotiated, but conditional contract becomes effective ...’” (Jonathan Hiatt & Craig Becker, “At Age 70, Should The Wagner Act Be Retired? A Response To Professor Dannin,” Berkley Journal Of Employment & Labor Law, 2005)

Becker Delivered “Payback” For Former & Current Employer

Becker Pushed Obama’s Pro-Labor Boss Agenda:

“The NLRB has grown steadily more radical under the Democratic Senate that came to power in 2006 and President Barack Obama, especially since the inclusion on the board of Craig Becker, formerly of the AFL-CIO and the Service Employees International Union.  Becker and the rest of the board’s actions had largely gone unnoticed by the public.  For instance, the NLRB agreed to hear a case that would likely allow for ‘micro unions’ to set up shop in a workplace … These micro unions would be organized labor’s beachhead, a staging-ground for the next wave of organizing or a base of operations for causing havoc when retailers refuse to kowtow.” (Rick Berman, “NLRB Turns Radical To Push Union Agenda,” The Post & Courier, 5/18/12)

“Obama, intent on rewriting the labor laws with or without Congress, nominated a radical union lawyer, Craig Becker, to the National Labor Relations Board (NLRB).  Becker had written extensively on how the NLRB could rewrite the labor laws to favor union bosses, making it entirely foreseeable that he would use a seat on the NLRB to sidestep Congress and push forward with the provisions of the failed EFCA bill.  The Senate therefore rejected his nomination on a bipartisan vote.  Sidestepping Congress, Obama recess-appointed Becker and he led a string of extreme anti-business actions last year that went well beyond the NLRB’s legitimate authority.  One such action, a rule requiring businesses to put up posters touting the benefits of unionization, was struck down in court.  Another, set to take effect next week, will implement the ‘ambush elections’ feature of EFCA even though that legislation is not the law.” (Phil Kerpen, “How A Bureaucratic Dictate Becomes A Law,” Daily Caller, 5/1/12)

© 2014 Workforce Fairness Institute