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GOP senators warn Obama against recess appointment for Craig Becker

Gautham Nagesh Contributor

Senate Republicans united Thursday to voice their opposition to a recess appointment for labor lawyer Craig Becker to the National Labor Relations Board. All 41 members of the minority signed a letter to Obama urging him not to use the upcoming recess to seat Becker after the Senate held up his nomination last month.

The White House has been under pressure from organized labor to support Becker’s nomination via a recess appointment ever since two Democrats joined the Republicans in blocking his nomination on Feb. 9. At the time, the White House pledged not to use a recess appointment immediately to seat Becker but said the option wasn’t off the table for the future.

It appears that future is here. This week Iowa Senator Tom Harkin told reporters that the appointment will happen once the recess begins on Monday. Additionally, during oral arguments Wednesday for a Supreme Court case concerning the NLRB, Chief Justice John Roberts questioned why President Obama hasn’t used recess appointments to fill the three vacancies on the board. The White House and Harkin’s office did not respond to requests for comment.

Business groups including the U.S. Chamber of Commerce have opposed Becker’s nomination due to his strong support for organized labor, including stints as counsel for both the AFL-CIO and the SEIU. His nomination was closely associated with the Employee Free Choice Act, also known as card check, which is currently stalled in Congress. Republicans echoed those concerns in the letter, which is dated March 25.

“Craig Becker stands far outside the mainstream of NLRB nominees,” said Senator Orrin Hatch. “Given the bipartisan opposition to his nomination, the Administration would be wise to not circumvent the will of the Senate by recess appointing him to the NLRB. There is no place on this powerful board for someone who believes that card check legislation – getting rid of the secret union ballot – can be enacted surreptitiously through regulation.”

“The U.S. Senate has made its feelings clear on Mr. Becker and his ability to serve in a fair and impartial manner as a member of the NLRB,” said Senator John McCain. “If this administration chooses to recess appoint Mr. Becker, it would be just another example of putting the will of one special interest group over the will of the American people.”

The full text of the letter is below:

President Barack Obama
The White House
Washington, DC 20500

Dear President Obama:

We are writing to urge you not to overturn the bipartisan vote against the nomination of Craig Becker to be a Member of the National Labor Relations Board (NLRB) through a recess appointment. To do so would bypass the advice and consent traditions of the Senate.

There is another bipartisan alternative. You have nominated three individuals for seats on the NLRB: Democratic union lawyer Mark Gaston Pearce, Senate HELP Committee Republican Labor Coordinator Brian Hayes, and Mr. Becker. Of these three, only Mr. Becker has generated any controversy.

In fact, the Senate appears prepared to confirm Messrs. Pearce and Hayes, which would give the NLRB a quorum of four Members. Thereafter, either Senate confirmation or your recess appointment of a fifth Member, other than Mr. Becker, would complete the Board with a 3-2 Democratic majority.

We oppose Mr. Becker’s recess appointment because of his extensive, highly controversial writings, and his entire legal and scholarly career, all of which indicate that he could not be viewed as impartial, unbiased, or objective in deciding cases before this quasi-judicial agency. Instead, his writings clearly indicate that he would use his position on the NLRB to institute far-reaching changes in labor law far exceeding the Board’s authority and bypassing the role of Congress. His rejection of traditional notions of democracy in union elections and of an employer’s status as a party to labor representation proceedings has garnered bi-partisan opposition to his nomination.

Also, as the first NLRB nominee to come directly from the legal staff of an international union (SEIU) and a union federation (AFL-CIO), Mr. Becker would, by his own admission, be required to recuse himself from many cases before the NLRB due to a legal or ethical conflict. He has offered to recuse himself only from cases involving the SEIU or the AFL-CIO as individual institutions. However, we believe that in order to avoid a conflict, or even the appearance of a conflict, Mr. Becker also should be required to recuse himself from all cases involving any of the SEIU’s locals, as well as the international union itself.

Mr. President, we also are concerned that Mr. Becker’s service on the Presidential Transition Team while still employed by the SEIU violates your own stated ethical principles. While on the Transition Team for the Department of Labor, and while still employed by the SEIU, Mr. Becker has admitted that he substantially wrote several of the Executive Orders you issued shortly after taking office. Those Executive Orders clearly benefitted the SEIU and the AFL-CIO. Such actions undermine the confidence we and members of the public can have in Mr. Becker’s judgment, as well as his objectivity, and they belie your Administration’s stated higher ethical standards.

We urge you not to bypass the bipartisan Senate vote by giving Mr. Becker a recess appointment to the NLRB. Taking this action would install a rejected nominee for an appointed term to the NLRB, setting an unfortunate precedent for all future nominations and future administrations.