Obama Defines Dysfunction With His NLRB Recess Appointment

From AEI:

Obama Defines Dysfunction with One Appointment By Kevin A. Hassett

Bloomberg.com

Sunday, July 25, 2010











If Democrats wonder why their political fortunes have shifted so much, they should study the appointment of Craig Becker to a body that adjudicates labor disputes.



It captures everything that is wrong with the Obama administration in a nutshell. Republicans should study the case of Becker as well, as it illustrates everything that is wrong with Washington. Democrats should run from Becker; Republicans should run against him.



This wasn't exactly what voters expected from the man who promised to change the tone of Washington, but it got worse.One of President Barack Obama's first acts in office was signing Executive Order 13502, which urged agencies to consider requiring that contractors who do government work use unionized workers. Construction workers everywhere have seen hard times in this recession, but Obama gave preference to those who pay union dues that eventually support Democrats' election campaigns.



This wasn't exactly what voters expected from the man who promised to change the tone of Washington, but it got worse. Obama launched a dizzying flurry of actions designed to reward organized labor at the expense of everyone else.



Perhaps the low point was his attempt to appoint Becker to the National Labor Relations Board.



The NLRB is the panel responsible for issuing judgments in disputes between workers and private-sector employers. Specifically, the board is responsible for protecting the bargaining and organizing rights of workers as defined by the National Labor Relations Act of 1935, which sets limits on the practices of unions and employers.



Union Lawyer



Becker, the former associate general counsel for the Service Employees International Union, is an unusual choice to be an impartial judge because of his pro-union views. In a 1998 article, Becker stated that "At first blush it might seem fair to give workers the choice to remain unrepresented. But, in granting this option, U.S. labor law grants employers a powerful incentive to campaign for a vote of no representation."



Naturally, these opinions alarm employers worried about increased unionization through potential changes to statutes regarding union election procedures.



Obama nominated Becker for the seat in April 2009. This spring, Senate Republicans threatened a filibuster of the nomination. Becker could have been confirmed if he simply held on to the 60 votes that then existed in the Senate Democratic caucus. The doubts surrounding his appointment were too much even for Democrats. Obama gave Becker a temporary recess appointment in March.



Ethics Pledge



Controversy erupted when Becker seemed to violate an ethics statement made during his confirmation hearing. Becker pledged to abide by an ethics rule stating that he would "not for a period of two years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer." Since then, he turned around and began weighing in on cases involving local chapters of the SEIU.



In one case, dealing with an SEIU chapter at a California hospital, the NLRB decided to administer nothing more than a wrist slap to a local that attempted to intimidate workers opposed to the union.



In another case, the NLRB sided with an SEIU local in deciding that interns and residents at hospitals aren't "students," a ruling that may lead to a wave of unionization at hospitals.



Absolved of Wrongdoing



Becker argued that he didn't need to recuse himself because the "SEIU is a separate and distinct legal entity from the many local labor organizations affiliated with the SEIU." NLRB Inspector General David Berry concurred with that assessment, ruling that Becker didn't violate his ethics pledge when voting on cases involving SEIU locals.



Becker has been absolved of any wrongdoing, and the ruling is supported by longstanding practice at the NLRB. The legal reasoning is, however, questionable.



For example, the SEIU's own constitution implies that the locals are intricately woven into the parent organization. Among other things, the parent has jurisdiction over the local unions, can direct an examination of its books, the president of the organization can direct local unions or appoint a trustee to take charge of it. A local union isn't even allowed to pay bills before it mails its monthly membership check to union headquarters.



Moreover, the ruling violates the spirit at least of federal ethics laws, which dictate that executive appointees endeavor to avoid even the appearance that they are violating ethical standards, and the appearance should be "determined from the perspective of a reasonable person."



Problematic Partisan



If Obama wanted to find a place for someone as talented but problematic as Becker, he easily could have appointed him to a position elsewhere in the administration where he took on more partisan activities. But assigning him to be an impartial judge is a punch to the nose of anyone who cares about justice and fairness.



In Becker's place, Obama could have appointed some little- known ideologue who would have had the same impact without the potential conflicts of interest. Instead, he chose to reward his union buddies, and antagonize his adversaries.



How sad that the Obama who was so inspirational in 2008 has become so partisan that he would appoint an SEIU attorney to adjudicate cases involving the union's local chapters, and hide behind an ethics report that violates any standard of common sense.



Kevin A. Hassett is a senior fellow and the director of economic policy studies at AEI.