[Senate Hearing 111-717]
[From the U.S. Government Publishing Office]
S. Hrg. 111-717
NOMINATION OF HAROLD CRAIG BECKER
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
ON
NOMINATION OF HAROLD CRAIG BECKER, OF ILLINOIS, TO BE A MEMBER OF THE
NATIONAL LABOR RELATIONS BOARD
__________
FEBRUARY 2, 2010
__________
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Pensions
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming
BARBARA A. MIKULSKI, Maryland JUDD GREGG, New Hampshire
JEFF BINGAMAN, New Mexico LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington RICHARD BURR, North Carolina
JACK REED, Rhode Island JOHNNY ISAKSON, Georgia
BERNARD SANDERS (I), Vermont JOHN McCAIN, Arizona
SHERROD BROWN, Ohio ORRIN G. HATCH, Utah
ROBERT P. CASEY, JR., Pennsylvania LISA MURKOWSKI, Alaska
KAY R. HAGAN, North Carolina TOM COBURN, M.D., Oklahoma
JEFF MERKLEY, Oregon PAT ROBERTS, Kansas
AL FRANKEN, Minnesota
MICHAEL F. BENNET, Colorado
Daniel Smith, Staff Director
Frank Macchiarola, Republican Staff Director and Chief Counsel
(ii)
C O N T E N T S
__________
STATEMENTS
TUESDAY, FEBRUARY 2, 2010
Page
Harkin, Hon. Tom, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming,
prepared statement............................................. 3
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia... 3
Becker, Harold Craig, Associate General Counsel, The Service
Employees International Union and the American Federation of
Labor & Congress of Industrial Organizations, Chicago, IL...... 6
Prepared statement........................................... 8
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio....... 11
McCain, Hon. John, a U.S. Senator from the State of Arizona...... 13
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 15
Prepared statement........................................... 15
Merkley, Hon. Jeff, a U.S. Senator from the State of Oregon...... 17
Franken Hon. Al, a U.S. Senator from the State of Minnesota...... 18
Prepared statement........................................... 20
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania................................................... 20
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Response by Harold Craig Becker to questions of:
Senator Enzi............................................. 24
Senator Burr............................................. 26
Senator Isakson.......................................... 27
Senator McCain........................................... 30
Senator Hatch............................................ 39
Senator Coburn, M.D...................................... 47
Letters of Support........................................... 52
Letters of Opposition........................................ 55
(iii)
NOMINATION OF HAROLD CRAIG BECKER
----------
TUESDAY, FEBRUARY 2, 2010
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 4:00 p.m., in
Room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
Chairman of the committee, presiding.
Present: Senators Harkin, Brown, Casey, Merkley, Franken,
Isakson, McCain and Hatch.
Opening Statement of Senator Harkin
The Chairman. The Committee for Health, Education, Labor,
and Pensions will come to order.
We are here today to take the rather unusual step of
holding a hearing on a nominee for the National Labor Relations
Board. It has not been the standard practice of this committee
to hold hearings on NLRB nominations. For the past 25 years, we
have confirmed 28 new members to the Board; we have held only
one hearing in that time, and that was for the Chairman in
1993. We have not had a hearing on a nominee to serve as a
regular Board member since 1980, three decades ago.
However, my colleagues on the other side of the aisle have
requested a hearing. And while I am reluctant to further
prolong the consideration of an obviously well-qualified
nominee, I was willing to bend over backwards to accommodate
that request, because I think the work of the NLRB is
tremendously important and deserves this committee's attention.
The NLRB is a small agency, but its mission is a large one,
to ``encourage the practice and procedure of collective
bargaining and protect the exercise by workers of full freedom
of association.'' In today's challenging economy, these rights
are more important than ever.
When the economy is bad, workers are insecure, and more
vulnerable to abuse. It becomes much harder for them to join
together to insist on fair treatment. It becomes much riskier
to speak out about unsafe working conditions, it becomes an act
of real bravery for a worker to stand up and say, ``We deserve
to be treated with fairness, and decency, and respect.''
Well, American workers have the right to do, and say, all
of these things because they are protected by the National
Labor Relations Act. Even for the majority of workers who may
never hold a union card, just having these rights available is
an invaluable deterrent against abuse.
But the system only works if there is a strong NLRB to
enforce these rights. I made no secret of the fact that I have
been troubled by some aspects of the recent Board's
performance. In recent years, the Board doesn't seem to be
doing all it can to inform workers of their rights, or to
assess appropriate penalties for repeat violators of our labor
laws.
I'm also concerned with the excessive delays of the Board.
Justice delayed is justice denied, and all too often these
delays mean there is no real penalty for violating workers'
rights. We have a five-member Board, there's only two members
there now, and they can't get the job done.
So, I think it's a serious challenge to restore the
balance, to revitalize the core mission of this Agency, which I
just quoted.
I am confident that Mr. Becker can be an important part of
that effort. Craig Becker is one of the pre-eminent labor law
thinkers in the United States and, I might add, a proud son of
the State of Iowa. He has taught labor law at some of our
finest law schools, including Georgetown, UCLA, and the
University of Chicago, he has authored numerous articles on
labor and employment issues.
Mr. Becker is also a skilled litigator who has advocated
for workers' interests in the highest courts of the land,
arguing cases in virtually every Federal Court of Appeals, and
before the U.S. Supreme Court.
I have met with Mr. Becker, I have spoken with him at
length, and I can say with great confidence he will be an
invaluable addition to the National Labor Relations Board. He's
an expert on the law, he knows the Board, he brings a
tremendous depth of experience to this important position.
Despite Mr. Becker's superb qualifications for the Board,
some of my colleagues have expressed concern about his
nomination. Much of this concern, it seems to me, is focused on
Mr. Becker's academic writings. As an academic, Mr. Becker has
written extensively on a variety of legal topics. I can't say
I've read them all, but I've read some.
He has taken a critical approach to existing law. There's
nothing wrong with that--I do that myself. But that's what
academics are supposed to do; to contribute to the marketplace
of ideas.
Mr. Becker made clear in his responses to this committee's
written questions that he understands and respects the
distinction between his current role as an intellectual
advocate and the role he would play on the Board as an
impartial adjudicator. He is fully aware of what his duty as a
member of the Board would be.
Some other critics seem to object to Mr. Becker simply
because he was a union lawyer--a union lawyer--and I might add,
a pretty darn good one. This is hardly cause for concern for a
Board member. Most labor lawyers devote their careers either to
representing unions and workers or to representing management.
And we, on this committee, have confirmed Board members with
both union side and management side backgrounds in the past
without any great cause for concern.
As with these past members, I'm confident that Mr. Becker
will approach the job with an impartial and open mind. There is
no question that Mr. Becker has been thoroughly vetted for this
position. He has met personally with any Senator who has
requested it. He has answered more than 280 written questions
from this committee, the members; more questions than were even
asked of Justice Sotomayor, I'm told.
Everyone on the committee has had ample time to review his
record and his responses. So, I hope that today's hearing will
bring us to the end of this lengthy process, that we can move
quickly to confirm Mr. Becker's nomination and let him start
his important work.
I will yield now to Senator Isakson for his opening
statement.
Statement of Senator Isakson
Senator Isakson. Well, thank you very much, Chairman
Harkin.
Welcome, Mr. Becker. I enjoyed talking to you in our
office, I appreciate your being here today. And I would like to
ask unanimous consent that the full statement of Ranking Member
Mike Enzi from Wyoming be submitted for the record.
The Chairman. Without objection.
[The prepared statement of Senator Enzi follows:]
Prepared Statement of Senator Enzi
I'd like to thank Chairman Harkin for calling this hearing
today. As my colleagues know, Mr. Craig Becker is nominated to
serve as a member of the National Labor Relations Board. I
would also like to thank Chairman Harkin for holding a
confirmation hearing prior to a committee vote on this nominee.
But I am concerned that the Majority has scheduled a vote on
Mr. Becker for Thursday. Typically, under regular order in this
committee, we have a 10-day period following a nomination
hearing to review what we've learned, and to ask follow-up
questions. It is unfortunate that we will not have that
opportunity with this nominee. There will be testimony from
this hearing and follow-up questions that could help inform our
decision on this nominee, but this committee's review will
unfortunately be incomplete because of the haste taken in
moving to a mark-up.
Serious concerns have been raised by HELP Committee members
and the employer community about Mr. Becker's writings--
particularly the potential for radical changes in labor law he
has advocated, and argued can be implemented, without
congressional authorization. I sincerely hope that Mr. Becker
will speak to this concern in today's testimony and in follow-
up questions as well.
Some will argue that Senators on this committee should
accept vague assurance that a nominee will follow precedent and
the law, and that the nominee respects the legal rights of
employers and individual union members. But I will be looking
for specific assurances with respect to specific statutes and
regarding specific limits on the Board's authority. I say that
upon examination of the current situation at the National
Mediation Board (NMB).
Last year, the HELP Committee confirmed two nominees at the
National Mediation Board who promised the committee one thing
and acted in direct contradiction to their promises almost
immediately upon assuming office. I certainly don't want to
hold this nominee accountable for the actions of others, but
going forward I trust this committee will be vigilant in
holding nominees accountable for their testimony, as we carry
out our oversight responsibilities.
Mr. Chairman, independent boards such as the National Labor
Relations Board are entrusted with a great deal of autonomy.
The decisions they hand down and the regulations they enforce
control a very significant portion of our economy, and our
Nation's jobs. In the Senate, it is our responsibility to
determine if these nominees can be entrusted with this power,
or if they would compromise fairness to grant favors to special
interest groups and former employers.
I want to raise my concern today that Mr. Becker's ethics
disclosure paperwork has not been updated with the Office of
Government Ethics since July 2009 as far as I am aware. The
career professionals at the Office of Government Ethics and the
National Labor Relations Board should determine whether his
financial interests have changed since then. His paperwork also
needs further review to determine if he has worked on
additional matters since last July that could subject him to
added recusals, if confirmed. The Administration has pledged
its support for transparency and accountability, and I,
therefore, question why this committee is rushing this nominee
through without the regular review. With any nominee, it is
important before we hold any vote in committee that all
paperwork is completed.
Finally, Mr. Chairman, I also want to register my concern
with hastily moving controversial nominees before the seating
of Senator-Elect Scott Brown. Yesterday, the Senate invoked
cloture on DOL Solicitor Nominee Patricia Smith, by a vote of
60-32, a nominee who was voted out of committee on a straight
party line vote. I have been supportive of nearly all of the
nominees who have come before this committee and I have worked
hard with the Chairman to swiftly confirm these nominees and
put them in place. But the Senate has an important
responsibility of advice and consent. It is my view that this
committee should refrain from jamming through nominees along
party lines, and should not report out nominees before the
seating of the new Senator. I urge this Administration to find
qualified nominees who will enjoy broad support across party
lines in the Senate. And, I commit to doing my part in helping
to see that this happens in the upcoming year.
I thank the Chairman for holding this hearing and I join
him in welcoming Mr. Becker here today.
Senator Isakson. I am standing in for Senator Enzi today as
Ranking Member as he has another commitment.
The five-member NLRB supervises union elections,
investigates labor practices and most importantly, issues
rulings that interpret the National Labor Relations Act.
Currently, the Board has two Commissioners--one Democrat and
one Republican.
The NLRB oversees a delicate balance of current law and on
organizing provides advantages and restrictions for both sides.
Mr. Becker, as mentioned by the chairman, is currently
Associate General Counsel to both the AFL-CIO and the Service
Employee's International Union. So, it is appropriate, to be
sure, that the answer to the question of the willingness to
maintain a balance when casting the deciding vote.
Just yesterday, the committee received two letters in
opposition to Mr. Becker's nomination; one from 23 major trade
associations representing millions of American employers,
another from 600 manufacturers nationwide, and I would ask
unanimous consent those letters be submitted for the record.
The Chairman. Without objection.
[The information referred to can be found in Additional
Material.]
Senator Isakson. Thank you, Mr. Chairman.
All of the members of this committee are aware that
Congress is currently considering legislation known as the
Employee Free Choice Act, which would essentially end the
practice of secret ballot process in union elections. Some have
expressed concerns that Mr. Becker's past writings have
indicated a belief that the NLRB has the authority to make some
of the dramatic changes included in the Card Check bill without
congressional action.
I recently questioned Mr. Becker when he was kind enough to
come to my office, and I questioned him in writing, as well,
about this important matter. I asked him if he would attempt to
certify a union even if no secret ballot election had occurred.
He replied that he understood that the Board can only certify
the results of a Board-conducted election. And I would
appreciate his reconfirming that statement that he made to me
in that private meeting today.
Mr. Becker has also advocated a new body of campaign rules
that would severely limit the ability of employers to voice
their opinion on unionization. He has argued that a meeting an
employer holds that involves captive audience ought to be
grounds for overturning an election. If an employer wants to
distribute leaflets that oppose the union, for example, Mr.
Becker said, it must allow the union access to its private
property to do the same. But Mr. Becker has assured me that
these comments as said by the Chairman were scholarly writings,
made as a scholar, seeking to further meaningful and wide-
ranging analysis of the law.
He went on to say that any such statements will not control
his judgment on these questions if he's confirmed as the member
of the NLRB.
I raised that question to make this point. Last year we
confirmed two nominees to the National Mediation Board on this
committee. Both of those nominees I questioned at length over
the question of organizing in the aviation industry. The
National Mediation Board oversees those elections, and for 75
years, union recognition required a majority vote of all of the
employees in the company. Now the new Democrat NMB is seeking
to change the rule to a majority of those voting, which as
anybody in this room could tell, is a significant sea change in
the delicate balance between management and labor.
I questioned both of those nominees on their disposition
toward that issue and both assured me that they'd not rush to
judgment. Yet, within weeks of their confirmation they--as a
majority of two on the three member board--brought forward a
rule which is now pending, that will change a 75-year-old
practice so that an airline--Delta Airlines, for example, that
acquired Northwest--which has a union shop in terms of the
flight attendants at Northwest, nonunion at Delta--now a 75-
year-old rule is going to be changed by this majority who said
they'd give it time to think about it and investigate it. So,
if the turnout was 10 percent, 6 percent of a unit could
permanently unionize the entire unit.
That's why it is so important for me to have assurances
from Mr. Becker as to the approach he's going to take on the
critical questions he'll have before him in the not-too-distant
future.
So, Mr. Becker, I welcome you to be here today, I hope
you'll take the time to answer those two questions, and Mr.
Chairman, I thank you for the time to ask them.
The Chairman. Thank you very much, Senator Isakson.
Harold Craig Becker has been an Associate General for the
Service Employees International Union since 1990, also staff
counsel for the AFL-CIO since 2004. As I mentioned earlier, a
native Iowan, Mr. Becker graduated from Iowa City West High
School before going on to Yale University and Yale Law School.
Now, wait a second, maybe I have some doubts, now.
[Laughter.]
The Chairman. No, I'm just kidding. Just kidding about
Yale, that's all.
He has since taught labor law at UCLA, University of
Chicago and Georgetown Law Schools, he has published numerous
articles on labor and employment law in scholarly journals,
including the Harvard Law Review and the Chicago Law Review, as
I mentioned earlier, has argued labor and employment cases in
virtually every Federal Court of Appeals and before the U.S.
Supreme Court. He and his wife, Amy Stanley, have two sons,
Thomas, 18, and Isaac, 16.
Mr. Becker, welcome to the committee. Your statement will
be made a part of the record in its entirety. I was going to
ask you to sum it up, but it's a fairly short statement, so
please proceed as you so desire.
STATEMENT OF HAROLD CRAIG BECKER, ASSOCIATE GENERAL COUNSEL,
THE SERVICE EMPLOYEES INTERNATIONAL UNION AND THE AMERICAN
FEDERATION OF LABOR
& CONGRESS OF INDUSTRIAL ORGANIZATIONS, CHICAGO, IL
Mr. Becker. Thank you Chairman Harkin, Ranking Member
Isakson, and members of the committee. It is a great honor to
appear before you today.
I'd like to thank my wife, Amy Dru Stanley, and my two
sons, Tom and Isaac, not only for being here today but for
their willingness to uproot their happy lives on the South Side
of Chicago.
In addition, I would like to thank my parents, Sam and Ruth
Becker. My parents instilled in me some of the core values that
I hope to carry with me into my service on the Board, should I
be confirmed. My mother fled the terror of Nazi Germany. She
came to this country and became a nurse. From her, I gained a
profound appreciation for the liberties that we enjoy--of
speech, of belief, and of association--and of the security I
might otherwise have taken for granted growing up, as the
Chairman has indicated, among the rolling corn fields of Iowa.
My father grew up playing along the banks of the
Mississippi River in Quincy, IL. He fought for our country in
the Pacific during World War II. He came back to college on the
G.I. Bill, and became a beloved teacher at the University of
Iowa. From my father I learned the value of hard work and the
importance of respecting all points of view, no matter how
different from my own. From both my parents, I learned a
reverence for country and a desire to serve it.
When I was growing up, my father used to tell me stories
about growing up just up the stairs from his father's shoe
repair shop. My grandfather came to this country from Poland on
a steamship with nothing but what was in his pockets. He
somehow made his way from New York to Quincy, and there he
scraped together the money to start his own shop, the Star Shoe
Repair. For my father's family, the shop represented the
American dream. And my grandfather in one person, embodied the
vital, creative, and productive forces that American labor law
seeks to knit together in harmony.
On the one hand he was an entrepreneur. He staked
everything on his shoe shop and he was always dependent on
being able to satisfy his customers. On the other hand, he was
a worker--bent over his bench, hammer in hand, proud of his
craft. I still have one of the iron shoe casts from his shop,
and I keep it on my shelf to remind me where I come from.
I have devoted my entire professional career to teaching
and practicing in the area of labor and employment law. I have
represented not only unions but individual employees in diverse
trades and professions--prison guards to retail clerks,
hospital administrators to home-care workers, before the Board
and courts ranging from the courts of common pleas to the U.S.
Supreme Court.
I have had the luxury of debating the big questions of
labor and employment law with my students and colleagues at a
number of law schools in attempting to contribute to the robust
debate which is the hallmark of our system of higher education.
As an attorney, I have sat across the table from management
and sometimes on the same side of the table as management. I've
learned to appreciate the concerns of employers, and often been
able to find common ground between labor and management.
It is humbling to sit before you and contemplate serving on
the National Labor Relations Board, an institution that--for 75
years this year--has defended the rights of working Americans.
During the course of my almost three decades of practice, I
have had the opportunity to work with the Board's staff at
almost every level. I have participated in representation
cases, been present when the ballot boxes were opened and at
that often tense moment when the tally is announced.
I have represented both sides in unfair labor practice
cases, I've appeared before the Board, I've sat with the
Board's counsel and across the courtroom from the Board's
counsel in many Courts of Appeals. In every instance, my
understanding of labor law has been enriched by the Board's
staff. And I would be remiss today if I did not underscore the
professionalism and dedication of the current chairman Liebman
and member Schaumber. It would be an honor to serve with them.
Finally, should I be confirmed, I want to pledge today that
I will remain faithful to the will of Congress. Like other
members of the labor bar--both labor and management side who
have served on the Board and applied the law impartially and
fairly--if confirmed, I will do the same.
Although the labor relations bar is a divided one, I look
forward--if given the opportunity--to rising above partisanship
to serve a higher purpose, which is the fair and impartial
application of the law. I fully understand that my decision,
should I be confirmed to be a member of the Board--unlike the
musings of a scholar--will have important, immediate, and
concrete implications for labor, for management, and for the
general public.
In sum, I understand that, if confirmed, I will have a duty
to implement the intent of Congress as expressed in the law, to
consider impartially all views expressed to the Board, to
deliberate with my fellow Board Members, and to adjudicate
cases based on the facts presented and the law. That is exactly
what I pledge to do, if confirmed.
I thank you for the opportunity to give these opening
remarks and I look forward to your questions.
[The prepared statement of Mr. Becker follows:]
Prepared Statement of Harold Craig Becker
Thank you Chairman Harkin, Senator Enzi, and members of the
committee. It is a great honor to appear before you today as well as to
be considered to be a member of the National Labor Relations Board.
I am joined here by my wife, Amy Dru Stanley, and two sons, Tom and
Isaac Stanley-Becker. I would like to thank them not only for being
here today but also for their willingness to uproot their lives on the
South Side of Chicago.
I would also like to thank my parents, Sam and Ruth Becker. My
parents instilled in me many of the core values that I will carry into
my work at the Board, should I be confirmed. My mother, who is no
longer with us, fled the terror of Nazi Germany as a young girl, and
later became a nurse in the United States. From her, I gained a
profound appreciation for the liberties we enjoy in this Nation--of
speech, of belief, and of association--as well as a vivid awareness of
the security I might otherwise have taken for granted growing up amidst
the rolling corn fields of Iowa. My father, who cannot be with us
today, played on the banks of the Mississippi as a boy in Quincy, IL,
fought for our country in the Pacific during World War II, returned to
college on the G.I. Bill, and became a beloved teacher at the
University of Iowa. From him, I learned the value of hard work and the
imperative of respecting the views of others--no matter how different
from my own. From both my parents, I learned a reverence for our
country and a desire to serve it.
My father often told me stories of growing up just up the stairs
from his father's shoe repair shop. My grandfather came to America on a
steamship from Poland. A young man with nothing but what was in his
pockets, he made his way from New York to Quincy, and there somehow
scraped together the money to start his own shop--Star Shoe Repair. For
my father's family, the shoe shop represented the American dream. And
my grandfather embodied the vital, creative, and productive forces that
our Nation's Federal labor law seeks to bind together in harmony. My
grandfather was an entrepreneur--staking everything on his shop and
ever dependent on his customers to stay in business. Simultaneously, he
was a worker--bent over his bench with hammer in hand, proud of his
craft. I keep one of the iron shoe casts from his shop on my shelf to
remind me of where I come from.
I have devoted my entire professional career to teaching and
practicing labor and employment law. I have represented not simply
unions but also individual employees, belonging to no labor
organization, in diverse trades and professions--from
prison guards to retail clerks, from hospital administrators to home-
care workers. I have appeared before both the Board and in courts
ranging from county courts of common pleas to the U.S. Supreme Court. I
have debated central questions of labor law with colleagues and
students at Georgetown University, the University of California at Los
Angeles and the University of Chicago School of Law. As a scholar, I
have had the opportunity to reflect on the broad sweep of the law and
join in
robust, open, and provocative dialogue, which is the lifeblood of the
American system of higher education. As an attorney, I have sat across
the table from management and also on the same side of the table, in
both postures gaining an understanding of employers' concerns and often
finding common ground between labor and management. It is this range of
experience that, should I be confirmed, I will draw on in collaborating
with my fellow Board Members to fairly, efficiently and faithfully
apply the law.
It is humbling to contemplate serving on the National Labor
Relations Board, an institution that has protected the rights of
working Americans for 75 years. In my practice, over the course of
almost three decades, I have had the opportunity to work with the
Board's staff at almost every level. I have participated in
representation cases and I have been present when ballot boxes were
opened and at the charged moment when the vote tally is announced. I
have met with General Counsels--nominated by Presidents from both
parties--to discuss whether complaints should issue. I have represented
parties on both sides of unfair labor practice cases, argued before the
Board itself, and appeared alongside the Board's counsel and across the
courtroom from the Board counsel in the U.S. Courts of Appeal. In every
instance, my understanding of the law has been enhanced by the Board's
highly skilled staff, who are committed to the purposes of the act. And
I would be remiss if I did not underscore the dedication and
professionalism of current Chairman Liebman and Member Schaumber,
particularly during the last 2 years when they have continued to
perform the work of the Board while the other three seats on the Board
remain vacant. It would be an honor to serve with them and work with
the entire staff of the Board and its General Counsel.
Finally, should I be confirmed, I will always remain faithful to
the will of Congress. Like other members of both the labor and
management bars who have served on the Board and applied the law
impartially and fairly, I will do the same. Although the labor
relations bar tends to be a divided one, I embrace the opportunity,
should I become a member of the Board, to transcend the adversarial
process in order to serve a larger purpose--the fair and faithful
enforcement of the law. I fully understand that, if confirmed, I will
occupy a position far different from the positions I have occupied as a
scholar, teacher, and advocate. I fully understand that, if confirmed,
my decisions, unlike the views of a scholar, will have practical,
concrete, and important consequences for labor, management and the
public at-large. In sum, I fully understand that, if confirmed, I will
have a duty to implement the intent of Congress as expressed in the
law, to consider impartially all views appropriately expressed to the
Board, to deliberate with my fellow Board Members, to use the wealth of
knowledge and experience possessed by the Board's career staff, and to
decide cases fairly based on the relevant facts and applicable law.
That is exactly what I pledge to do, should I be confirmed.
Thank you for the opportunity to offer these opening remarks. I
welcome your questions.
The Chairman. Mr. Becker, thank you very, very much for
that statement. We'll open a round of 5-minute questions.
Mr. Becker, right off the bat, here, some of your critics
have suggested that you are coming to the Board with an agenda,
and that you intend to implement Card Check, administratively,
requiring the Board to certify a union as employees collective
bargaining representative on the basis of signed authorization
cards, rather than a secret ballot election.
Now, I have noted in your responses to written questions
for the record from my Republican colleagues that you have
refuted this claim multiple times, explaining that the Card
Check process proposed in the Employee Free Choice Act would
require an act of Congress. Can you provide more detail on how
the National Labor Relations Act constrains the Board's ability
to implement the Card Check certification process
administratively?
Mr. Becker. Well, thank you for the opportunity to address
that question, Senator Harkin.
The reason the Employee Free Choice Act has been introduced
in Congress and the reason that question is before the Congress
and not the Board is that the current act clearly precludes
certification in the absence of a secret ballot election.
Section 9 of the Act, in two distinct ways, makes clear that
Congress has intended that a secret ballot election be
preconditioned for certification of the union as a
representative of a unit of employees. First, it so provides
explicitly--that is, it provides that the Board shall certify
the results of a secret ballot election.
Moreover, it provides that employers--should they be
confronted with a demand for recognition based on evidence of
majority support, for example, by signed authorization cards--
may petition for a secret ballot election.
So, the law is clear that the decision as to whether an
alternative route to certification should be created rests with
Congress, not with the Board.
The Chairman. Thank you very much, Mr. Becker. I don't
think I could have been any clearer than that. That's the only
question I have for this round, I would yield to Senator
Isakson.
Senator Isakson. Thank you, Mr. Chairman.
Well, on that question--because it is raised, as you are
well aware--and it's my understanding from the information I
have that a gentleman by the name of Demetri Eglesian--are you
familiar with Mr. Eglesian?
Mr. Becker. I know that he is a lawyer in Seattle, yes.
Senator Isakson. He is an attorney--I do not know him--who
represented the AFL-CIO and wrote that,
``Mr. Becker would make it easier for workers to
unionize based on a card check showing a majority of
support for the EFCA, Employee Free Choice Act,
would.''
So, this statement that he has written just implies, pretty
explicitly, what the Chairman just asked you and you responded
to, so I take it your affirmation of his question is a
rejection of that quote I just read?
Mr. Becker. That's absolutely correct, Senator Isakson.
Senator Isakson. And the other gentleman was a Mr. Gould,
who has made a similar--although not quite as direct--comment
as before.
Second question--I mentioned to you the Delta Airlines
issue, and I hate to bring up a specific issue, but it's timely
and it's appropriate, and it comes on the heels of a
confirmation where the questions were asked of the potential
nominees. That's why, you should not take the questions of
whether a statement is a reflection of your thought to be
accurate or not to an insult to your intelligence, rather a
need for the committee to know there's going to be an even-
handed approach in terms of the issues that have come before
it.
But on that question--that is a 75-year precedent in labor
law that has served the aviation industry with little or no
reservation that summarily on the act of two members of a
three-member board has been put up for a comment to change
within 60 days. You can see the tremendous magnitude that type
of an action on behalf of a board that's supposed to be a
mediator, instead, becomes an activist, can bring to industry.
I would think you would understand that point.
Mr. Becker. Yes, I do, Senator Isakson.
Senator Isakson. Well, that's the reason for that concern.
And last, in the past you've stated the NLRB is not
required to, ``Permit the employer to be an active participant
either favoring, opposing, or even obstructing such an
election,'' referring to union elections. Does this mean that
you favor the NLRB limiting employers' involvement in the
election process as it currently operates?
Mr. Becker. Well, again, I thank you for giving me the
opportunity to address that question, because I know that's
been a concern of many interested parties.
When I was a teacher and a scholar, I wrote an extended
article, and the purpose of the article was to step back and
address the history of Board regulation of union elections--how
it evolved over time from 1935 to the point that I wrote that
article--and it was an attempt to contribute to a scholarly
debate, and ask questions about the regulation of union
elections. It asked questions about who the appropriate parties
were, to the adjudication process, and what the role of those
parties should be. It was intended to be provocative and ask
fundamental questions in order for scholars and others to re-
evaluate.
I would suggest that that article is addressed to Congress.
It asks questions about how labor relations should be governed,
what the role of the parties should be. The current law clearly
provides a right to employers to express their view--not only
the National Labor Relations Act, but the first amendment to
the United States Constitution. It's clear that employers have
a legitimate interest and have a right, which is indisputable,
to express their views on the question of whether their
employees should unionize.
So, nothing in that article--if that's what you're
referring to--or others of my writing should be construed to
suggest that, in any way, I think that employers don't have a
right to freely express their views on the question of
unionization.
Senator Isakson. Summarily put, do you completely respect
Congress' authority in terms of writing the labor laws of the
United States, and Congress should completely respect the
ability of scholars to challenge and discuss--in an academic
environment--the application of those laws?
Mr. Becker. That is absolutely correct, Senator. I
understand that there's a different role that I will have than
the one I played as a scholar, and I respect that part of that
role is to respect the will of Congress.
Senator Isakson. Thank you, Mr. Becker.
The Chairman. Thank you.
Senator Brown.
Statement of Senator Brown
Senator Brown. Thank you, Mr. Chairman.
I just have one question, Mr. Becker. In your opening
statement you mentioned you sat with both sides of the table in
labor law cases. Based on those experiences, talk to us about
how that's instructed and informed your thinking on conflicts--
when conflicts between labor and management are involved?
Mr. Becker. I think one of the very important differences
between being a scholar and a practitioner, and I think one of
the values of having been both, is that when you're a
practitioner engaged in the practice of labor law, you're
engaged on a daily basis with employers. It's very different
than sitting in your office in the ivory tower. Every day, in
order to be a good advocate, you have to understand not only
the rights, but the interests of the other side. You can't be a
good labor lawyer without understanding that there's very sound
arguments on the other side, and very powerful and legitimate
interests on the other side.
I've practiced both employment law--representing individual
workers--and labor law. And in litigation, as we all know, most
cases end in settlement. So, in most instances, you're reaching
an amicable resolution with the employer; you're reaching an
accommodation, you're working out the problem.
The same is true in collective bargaining. In most
instances, bargaining ends in agreement. The two sides
recognize each others' interests, they compromise, they reach
an accommodation.
So, I think the practice of labor law--unlike the teaching
of labor law--that daily contact, and that need to understand
the legitimate rights and interests of the other side--is
enriching.
One of the things that I'm most proud of is that while
there has been opposition expressed by the business community
to my nomination, many of the management lawyers who I've
actually worked with for an extended period of time in Chicago,
have written to the Senate expressing their confidence in my
ability to be impartial. And my ability to be a problem solver.
That experience has enriched me, and I hope will benefit
me, should I be confirmed to the Board.
Senator Brown. Do you, from looking at NLRB decisions over
the years, that--you did not use the word empathy, but you
suggest that you at least understand the position of the other
side, and you understand their interests and their views and
their beliefs, which is, I guess, a fairly good definition of
empathy. Do you think that members of the NLRB in the past--is
that typically a feeling they have? That people understand
that--that members of the NLRB really do understand both sides
as they make those decisions? And, so how do you get there?
Mr. Becker. Well, I think the role of a member of the
Board--like the role of a judge--starts not with empathy, but
with the facts and with the law. I do think that experience is
important in order to understand the facts. That is, if you've
sat across the table from employers and really grappled with
their problems and tried to find a solution which is acceptable
to both sides, if you've sat next to an employee who's been
terminated, who's been denied a promotion and really understood
what that means to them and how that occurred, I think that
experience does enrich your ability to understand the evidence
and the facts presented.
I'm not sure I would use the word empathy, but I would say
that a broad and diverse experience that the members of the
National Labor Relations Board should have--and I would bring
one set of experiences, the two sitting members bring different
experiences, and my two colleagues who have also been nominated
bring a different set of experiences--those experiences will
inform our ability to fairly adjudicate the facts and apply the
law.
Senator Brown. Thank you, Mr. Chairman.
The Chairman. Senator McCain.
Statement of Senator McCain
Senator McCain. Thank you, Mr. Chairman.
I would ask to be included in the record, the letters from
the National Association of Manufacturers--the Nation's largest
industrial trade organization, including a letter with some 600
companies around the country, the NFIB and others who have all
weighed in heavily against Mr. Becker's confirmation.
The Chairman. Without objection, but you didn't mean 600
letters, did you?
Senator McCain. Six hundred organizations have signed the
letter.
The Chairman. Signed off.
[The information previously referred to can be found in
Additional Material.]
Senator McCain. Mr. Becker, do you or did you perform work
for and provide advice to ACORN, or ACORN-affiliated groups
while employed by your current employers or on a volunteer
basis?
Mr. Becker. Senator McCain, I have never done so.
Senator McCain. Never done that?
Have you discussed labor law or SEIU efforts to organize or
obtain collective bargaining rights for 37,000 home health-care
workers with former Governor Blagojevich or any members of his
staff?
Mr. Becker. I have--while I was in practice in Illinois, I
represented and provided counsel to one of the SEIU locals in
Illinois. Which, for a long period of time--long preceding the
Blagojevich administration--had been working to organize home-
care workers.
When the Governor was elected, I did have discussions with
members of his staff, and on one occasion I did have a
discussion in which the Governor was involved.
Senator McCain. And what were your recommendations?
Mr. Becker. My discussion with the members of the
Governor's staff and with the Governor had to do with
technicalities of the drafting of legislation eventually
adopted by both houses of the legislature which extended
collective bargaining to those workers.
Senator McCain. They needed your technical expertise?
Mr. Becker. Senator McCain, I'd worked on this particular
issue in a number of different States. Preceding Illinois, I'd
lived in Los Angeles and worked on legislation that was passed
there under a Republican Governor which was quite parallel to
the Illinois legislation, so I did have some expertise in the
area.
Senator McCain. According to the Wall Street Journal, a
second Executive order contemplated by former Governor
Blagojevich was designed to enable the SEIU to organize workers
in the State who care for developmentally disabled people in
their homes. Did you have any involvement in preparing or
developing a reported second Executive order for Governor
Blagojevich to expand organizing to this group?
Mr. Becker. No, I did not, Senator.
Senator McCain. How many cases involving the SEIU will you
have to recuse yourself from should you become a member of the
NLRB?
Mr. Becker. That, of course, is difficult to predict, but
the Service Employees International Union is rarely a party to
Board proceedings, historically.
Senator McCain. Aren't they involved in proceedings right
now concerning the NUHW, which has petitioned the NLRB to hold
elections at dozens of healthcare facilities where workers are
currently represented by the SEIU?
Mr. Becker. I have not been involved in that particular
matter. I know that there are representation proceedings----
Senator McCain. You haven't been involved in it but you
worked for the SEIU.
Mr. Becker. That's correct, Senator. So, I do have some
knowledge that there are proceedings pending at various
levels----
Senator McCain. Does that mean that you would be recused?
You would have to recuse yourself?
Mr. Becker. Well, my ethical obligations--which I take
very, very seriously and, in fact, the question that you asked
as to the scope of those obligations and whether it would
hinder my service on the Board is one I looked at very
carefully, when I was asked if I would consider this
nomination. As a result, those considerations led to the
execution of an ethics agreement which lay out exactly the
steps and the circumstances under which I would recuse myself.
And I will--as I pledged in that agreement--recuse myself from
any matter in which the SEIU is a party for 2 years after I am
confirmed.
If any other matter arises in which any questions can be
raised, or might be raised about my impartiality, I will take
that very seriously. I will consult with the Agency's ethics
officials, I will look at previous adjudication by other Board
members that have considered similar questions, and I will
recuse myself, if necessary.
Senator McCain. Well, I don't think it's that complicated,
Mr. Becker. The quote from the pledge is,
``I will not, for a period of 2 years from the date
of my appointment, participate in any particular matter
involving specific parties as directly and
substantially related to my former employer or former
clients, including regulations and contracts.''
It seems to me, since your former employer has been
involved with a number of issues before the NLRB, you would
have to recuse yourself from them. Since it's your former
employer.
Mr. Becker. I agree that that pledge is clear and I will
abide by that pledge.
Senator McCain. Meaning that you will recuse yourself from
any issues that come before the Board that have involvement
with SEIU?
Mr. Becker. I will comply, Senator McCain, with the terms
of that pledge scrupulously. And as I indicated, if any other
matters come up outside of the scope of that pledge in which
any party might think that I might not be impartial, I will
fully consider the matter in consultation with the Agency's
ethics official and other applicable law and prior
consideration of Board members of similar circumstances and, if
necessary, recuse myself from those cases, as well.
Senator McCain. Well, I see my time has expired. That's not
good enough. That's not good enough. If your former employer is
involved in issues before the NLRB, you should recuse yourself
from them.
My time is expired.
Statement of Senator Hatch
Senator Hatch. Mr. Chairman, unfortunately, I have to
leave. Would it be possible for me to submit my questions to
Mr. Becker for the record? I'd appreciate that, and with that,
I'll have to go.
The Chairman. Oh, I'd appreciate that. Yes, thank you very
much.
[The information referred to may be found in Additional
Material.]
[The prepared statement of Senator Hatch follows:]
Prepared Statement of Senator Orrin G. Hatch
I want to thank Chairman Harkin and Senator Enzi for
scheduling today's hearing on the controversial nomination of
Mr. Craig Becker to serve as a member of the National Labor
Relations Board.
Over my 34 years in the Senate, I have voted to confirm
most nominees to the NLRB in both Republican and Democratic
administrations. It has only been in the rarest of cases and
with the most divisive nominees that I have voted against an
Administration nominee to this board.&
I note that I am not opposed to President Obama's other
NLRB nominees--Democratic union lawyer Mark Pearce and the
Labor Counsel for Republicans on this committee Brian Hayes.
That, it seems to me, is a good package that working with the
current two members of the board would be able to decide cases
without a cloud hanging over it.
Both as Chairman and as Ranking Member of this committee
over many years, I worked in a reasonable way with Senator
Kennedy to agree on a balanced package of NLRB nominees--
thereby avoiding the need for a committee hearing.&
Unfortunately, the nomination of Craig Becker and his
inclusion in this package of nominees is not such an occasion.
If anyone warrants a hearing it is Mr. Becker.
I hope he views this hearing as an opportunity to clarify
his views to convince the skeptics among us that his
controversial writings published throughout his career don't
represent his views today.&
I hope he explains what he meant when he wrote that:
``Employers should have no legally sanctioned role in
union elections'' and also that ``employers should be
stripped of any legally cognizable interest in their
employees' election of representatives.''
If employers should have no role in union representation
elections, then employers would be prohibited from insisting on
a private, NLRB-supervised secret ballot election to determine
employee votes on union representation. Employers could then be
forced to accept the equivalent of card check and the increased
risks of union intimidation and peer pressure that comes with
it.
I hope he explains what he meant when he wrote that:
``The law leaves the board discretion to determine
the appropriate parties to hearings in representation
cases. It should exercise this discretion by specifying
that the only parties to both pre- and post-election
hearings are employees and the unions seeking to
represent them.''
I hope he explains what he meant when he wrote about
restrictions on employer free speech rights, including whether
the same restrictions on the solicitation, distribution of
material to and access to employees applies equally to
outsiders as it does to employers.
Does he still believe there should be restrictions
on an employer's ability to require employee attendance at
meetings to discuss union organizing?
Does he still believe there should be restrictions
on where representation elections are held, when they are held
(so-called quickie elections), and whether unions (but not
employers) should be allowed to have an observer during the
election (similar to poll watchers) to make sure that the
election is conducted fairly, that there is no campaigning by
employers or unions during the election, and that voters are
only those eligible employees entitled to vote in an
appropriate agreed-upon bargaining unit?
Does he still believe unions should be allowed to
advocate for increasing the number of strikes by permitting
repeated, short-
duration, grievance strikes to overcome the current prohibition
on partial or intermittent strikes? And I would add with a more
than a hint of sarcasm, that this is just what we need in the
current economy: numerous, short-term strikes to disrupt
production and sales.
These are just some of his controversial views that he
needs to explain today. But it doesn't end there. Mr. Becker
has written extensively about NLRB decisions that he feels were
wrongly decided and should be reversed.
He should also use this hearing to try and convince us that
his strong advocacy as a lawyer both with the AFL-CIO and with
the SEIU would not interfere with his ability to be a balanced
and impartial decisionmaker at the NLRB.
He also needs to explain his controversial actions as a
member of President Obama's transition team for the Department
of Labor while employed by the SEIU and AFL-CIO. He has
admitted drafting the Executive order issued last January
revoking the so-called Beck notice-posting requirement for
Federal contractors and requiring instead the posting of a
notice of employee rights under labor law. That Executive order
was unquestionably in his employer's best interests; in fact,
the AFL-CIO called for such actions in its written
recommendations for the labor department transition team.
He also needs to explain his controversial work on behalf
of ACORN. The controversial organization, linked to numerous
instances of voter fraud, has praised Mr. Becker's service in
working to organize home-care workers.
Finally, and most importantly, he should explain how
productive a board member he can be when he is required for at
least 1 year, and possibly longer, to recuse himself under the
government ethics rules from cases involving the AFL-CIO and
the SEIU, when he continues to be employed by both.
Of course, we have had practicing lawyers confirmed to the
NLRB in the past where they have been required to recuse
themselves from cases involving their clients. But this is the
first time in my memory--and perhaps ever in the history of the
NLRB--where a nominee is from the largest federation of labor
unions and one of the largest international unions.
Before we vote, we should at least know how many cases Mr.
Becker would have to recuse himself from if he were on the
NLRB.
Mr. Chairman, that's a lot of explaining to do. That's why
his nomination is so controversial.
Unfortunately, his answers to well over 200 written
questions I submitted to him last year were entirely
unsatisfactory--his replies, for the most part, merely re-
stated over and over that: (1) he was acting as a scholar when
he wrote all of those articles, (2) that now suddenly he has no
views that would prevent him from being open-minded, and (3)
that he could not answer because if confirmed he might be
required to rule on a case involving similar issues.
So, Mr. Chairman, I am certainly looking forward to more
complete, forthcoming, and candid answers this afternoon.
The Chairman. Senator Merkley.
Statement of Senator Merkley
Senator Merkley. I thank you, Mr. Chair. I'd be happy to
defer to Senator Hatch if he wanted to ask his questions, in
person, now?
Senator Hatch. Thank you, but I have to leave.
Senator Merkley. Thank you. Thank you, Mr. Becker, for
coming before us and tackling these questions. In your
testimony, you note that you have appeared before the Board and
in courts ranging from county courts to the U.S. Supreme Court.
Any interesting stories you can tell us about the issues you
wrestled with before the U.S. Supreme Court?
Mr. Becker. I had a very interesting experience in the U.S.
Supreme Court, Senator--very unsuccessful, I might add. But it
was certainly a very gratifying moment in my professional
career to appear before the Court.
It was an issue--not involving Federal labor law--but
rather the Fair Labor Standards Act. I represented a home-care
worker, similar to the home-care workers Senator McCain was
asking about. This one worked in New York, was employed by an
agency and worked overtime, but was not paid for the overtime.
And the question was whether such home-care workers should be
exempt from the requirements for premium pay for overtime,
because she was a so-called ``companion'' as that term is used
in the 1974 amendments to the Act.
So, it was an interesting question involving deference to
administrative agencies, the scope of that exemption and I
enjoyed the argument, but unfortunately I received no votes
from the U.S. Supreme Court.
Senator Merkley. Thank you for sharing that story.
You noted that you had had letters from folks you worked
with who had been lawyers for the management. Now, I know that
labor negotiations and cases can become very intense, because
there are issues being contested, and a lot of emotion goes
into it--so I was fairly impressed by that. Perhaps you can
describe who you worked with and what they said in their
letters to help us understand the relationship that you forged
with lawyers in that setting.
Mr. Becker. I appreciate that opportunity. I think one of
the questions that's before the committee, legitimately, is
about my character, and my ability to enter into this role,
adjudicate cases fairly based on the facts and based on the
law. And that's why, I think, the letters from management
lawyers who I've actually worked with, who actually know me,
who I've been an adversary of, are important.
There are two letters I'd like to point to that have been
sent to the Senate, both from prominent and longstanding
management lawyers in Chicago--one from Dick Marcus--Richard
Marcus, he works for the Sonnenschein Nath & Rosenthal firm.
He's practiced labor law in Chicago, I want to say, for 35
years or so. He represents the building owners--so all of the
major downtown buildings, the Sears Tower--formerly the Sears
Tower, etc.--he represents the owners of those buildings. And
we've been involved in litigation, we've been involved in
collective bargaining, involving the Service Employees Local 1.
We have, in other words, engaged on a number of different
contexts.
And he wrote a letter to, I believe, the Chairman and the
Ranking Member, describing that relationship and indicating
that he believed firmly that I could be impartial and fairly
adjudicate cases as a Board member.
The other letter is from Joseph Gagliardo, he's with the
Laner Muchin firm in Chicago, again, a long-time management
firm, and I think what's gratifying to me, in that letter from
Joe is that he indicates, again, that we've been involved in
matters which were very important to his clients, and very
important to my client. But that he perceived me as a problem
solver, someone he could sit down with, who understood not only
his own clients' interests, but the other lawyer's clients'
interests. And could solve problems in that manner.
Senator Merkley. Well, thank you very much.
Mr. Chair, that satisfies my questions. Thank you.
The Chairman. Senator Franken.
Statement of Senator Franken
Senator Franken. Well, thank you, Mr. Chairman.
Thank you, Mr. Becker for being here today for this unusual
hearing, almost unique hearing. I am a member of four labor
unions--I'm not sure how many members of this committee are.
So, I appreciate how important this area of the law is.
And I would imagine that most people who are nominated to
the NLRB have had some experience in labor law, would that be a
fair thing to say?
Mr. Becker. That's absolutely correct, Senator Franken.
Senator Franken. And most of those people would--if they
practiced labor law--would have either had to represent,
usually, management or workers, right? That's kind of what the
labor law is about, right?
Mr. Becker. That's been the history. It is--for better or
for worse--a divided bar.
Senator Franken. Yes, OK. So, most people sort of
specialize in one area or the other. And we have nominees--
Brian Hayes--who's Mr. Enzi's labor counsel here. He came to my
office and we had a nice conversation, and he's represented
management for his entire career as a labor lawyer, so that
happens--that's very frequent--we do that a lot, right?
Mr. Becker. That has certainly been the pattern of
appointments to the Board.
Senator Franken. It's not unusual that someone who has
represented labor would be nominated and confirmed to the NLRB,
is that right?
Mr. Becker. That's correct, Senator.
Senator Franken. This whole thing about the SEIU has
happened before?
Mr. Becker. It has happened before and members of both side
of the labor bar--both labor and management----
Senator Franken. If someone had represented a certain
somebody in management they might have to recuse themselves if
that company or corporation came before them, right?
Mr. Becker. That's correct, and there are written opinions
by former board members--current and former board members--
where such issues have come up and they have either decided to
recuse themselves when appropriate, or found that it was not
appropriate.
Senator Franken. Nothing unusual there.
Now, you have answered, I understand, over 280 written
questions from members of this committee, is that correct?
Mr. Becker. That is correct.
Senator Franken. Now, how long do they have to submit those
questions?
Mr. Becker. Let me recall. There was an initial set of
questions, we were nominated, I believe, in July and I received
a written set of questions in late July which were answered
during the summer, and then there was a set of follow-up
questions in the fall, which were also promptly answered.
Senator Franken. In other words, whoever had questions had
months and months, really, to submit questions to you, is that
correct?
Mr. Becker. That's correct.
Senator Franken. Let me ask you this--this is an unusual
hearing, as I understand, and I'm fairly new to the Senate, but
it was kind of impressed upon me that this is unique, really.
That the only other hearing for an NLRB Board Member was for
the Chair of the Board. So, this is unusual, and I guess this
was really the result of the insistence of a member who put a
hold on this process. Did that Senator, during all of these
months and months, submit any of those written questions?
Mr. Becker. I do not believe so, Senator Franken.
Senator Franken. Really? I mean, he or she had months and
months to do that, right?
Mr. Becker. That would have been correct, from July of last
year.
Senator Franken. OK.
Well, thank you for bringing your family here, and it's
nice to see you and again, as a member of four unions myself, I
am someone who--while he was campaigning for this office--got
his healthcare from the American Federation of TV and Radio
Artists. I really appreciate the work that everyone in your
field does. Thank you.
Thank you, Mr. Chairman.
Mr. Becker. Thank you.
[The prepared statement of Senator Franken follows:]
Prepared Statement of Senator Franken
Thank you, Mr. Chairman. I just want to very briefly
express my support of today's nominee, Mr. Craig Becker.
As I said in Tuesday's hearing, I am very pleased to have
Mr. Becker before us as a nominee. He has devoted his entire
career to educating others about the challenges faced by
today's ordinary workers. I very much admire his work and
career.
While Mr. Becker has faced much opposition, there is
absolutely nothing in his background that precludes him from a
seat on the National Labor Relations Board. Like all nominees
to the NLRB, he has an extensive background in labor law. It's
true that during his career, he most frequently represented
workers . . . but other nominees to the board have mostly
represented management. This is simply not an issue.
Mr. Becker has a wealth of experience and impressive
credentials. The NLRB plays a vital role in ensuring worker
protections, and Mr. Becker will be a valued addition to the
board. Today, I urge my colleagues to support the confirmation
of Mr. Becker.
Thank you.
The Chairman. Senator Franken, are your dues paid?
Senator Franken. [No response.]
The Chairman. I will move on now.
Senator Franken. Three of them. Three of the unions.
[Laughter.]
The Chairman. Senator Casey.
Statement of Senator Casey
Senator Casey. Thank you very much.
Mr. Becker, thank you for your appearance here, and for the
work you've put forth already to be confirmed. I know it's a
laborious, difficult process for anyone, but especially when
your nomination is the subject of conflict and debate. And
we're grateful for the time you've spent.
We're also grateful for your willingness to serve. We don't
say that enough around here. And I know that when you make a
commitment to serve it's not--in most cases singular, you have
a family that makes that commitment along with you. So we're
grateful.
I wanted to ask you a couple of questions--I've always
thought that when the Congress or in this case, the Senate, is
making a determination about whether to confirm a nominee or
not--and especially one who would be in a quasi-judicial role
or decisionmaking role, where you have to make decisions based
upon evidence and the presentation of evidence--that you ought
to have a set of characteristics that would lead the Senate to
confirm you. We confirm District Court judges, and Appellate
Court judges, and U.S. Supreme Court Justices, and we also
confirm a lot of other people who have similar jobs.
I've always thought that there was a series of
considerations that should be weighed and analyzed. Obviously,
someone's experience is very important--you've had experience--
is it 27 years?
Mr. Becker. I think it's now 28 years.
Senator Casey. Twenty-seven years of experience which is
vitally important to a position like this and to the
confirmation process. So, I think experience is a very
important factor, you've demonstrated that.
I also believe that when you're confirming someone to a
position like the one that you're seeking, the National Labor
Relations Board, that it should be someone who has the kind of
judgment or temperament--for a Federal Court judge we call it
judicial temperament or something similar to that. And from the
review that so many of us have undertaken with regard to your
nomination, there's nothing in the record that I would see that
would, in any way, question that temperament or judgment, the
objectivity that you would bring to the work that you have,
even though you've been an advocate. We don't confirm judges
around here that are robots or mechanical beings. We confirm
people that are human beings--that have a point of view--and
know how to argue and battle and be advocates.
I would hope that someone in your position would be someone
like that. We want some people who understand what it's like to
advocate for a position. But that doesn't mean that you can't
exercise a kind of objectivity that I think you can exercise.
And finally, and we could add more to this list but I think
certainly skill is very important. Experience is relevant,
judgment and temperament is relevant, but skill is very
important. I think that's obvious from your record.
In conclusion, about the main assertion against your
nomination. That because you have been an advocate in the
labor-management field where, in some ways, it's a unique field
in that you don't want--those who are on the management side or
the labor side--to have conflicts of interest. That's the
nature of that engagement.
So, I guess I'd ask you the main question which is, on that
question of objectivity and on that question of the kind of
temperament and approach you bring to decisionmaking, in light
of your role as an advocate for the men and women of organized
labor, how do you respond to that? I know this is probably the
444th time you've done this but----
Mr. Becker. Two hundred and eighty, I think, was the case.
That is obviously a very important question, and the
ability to be fair and impartial is, of course, absolutely
critical to the integrity of the Board. Maybe it would be best
to answer based on some of my experiences. When I graduated
from law school, I worked for the then-Chief Judge of the 8th
Circuit, Donald Lay. I watched the adjudicative process, and it
was a process, obviously where, in the Courts of Appeals or
judges appointed by different Presidents, have to talk to one
another, have to come to a conclusion. Judge Lay had been a
trial lawyer, plaintiff 's side trial lawyer in Omaha, NE
before he was on the bench. He came to the bench as a very
accomplished advocate and yet was able to set aside that role
once he became a judge.
I watched him and saw how his experiences enriched his
ability to be a judge, but were separated from his being a
judge. And I think that experience is an inspiration to me and
a model for me--the fact that I've played different roles
already in my career. It's very different to stand in front of
a class and have to explain labor law and the different
interests that are at issue in labor law and the various
provisions and how they fit together or sometimes come into
conflict then to advocate a particular position before the
Board or in court. You have to be able to understand that those
are different roles.
I've moved from one role to another, and I think that has
prepared me to move to yet another. I completely understand
that if I'm confirmed the role I will play will be different
from those roles, and I look forward to that.
Senator Casey. Thank you very much.
Mr. Becker. Thank you.
The Chairman. Thank you very much, Senator Casey.
Just a couple of things here to wrap it up. I know that a
few members have come in and expressed a desire to submit
additional questions for the record. Any questions--and I say
that to the staff who are here since there are no other
Senators here except Senator Casey, of course, and me--but any
questions to be submitted must be submitted prior to 10 a.m.
tomorrow. Must be submitted prior to 10 a.m. so that Mr. Becker
will have adequate time to reply before Thursday's markup.
There will be a markup of this committee in this room at 10
a.m. on Thursday, to report out Mr. Becker's nomination. I want
to point out that Mr. Becker has already responded, as I said,
to more than 280 written questions. He has always made himself
available to meet with any member who wished and has now
appeared before us for this virtually unprecedented hearing.
So, any questions and I am hopeful that they will be
limited in terms of the number. I hope we don't see another
couple of hundred questions submitted.
Regardless, the hearing will go forward at 10 a.m. on
Thursday. So, Mr. Becker, again I want to congratulate you. I'm
sorry--I have one final question I have to ask for the record.
Just to confirm, consistent with your ethics pledge, will you
recuse yourself from matters in which your former client, the
Service Employees International Union, is a party for 2 years?
Mr. Becker. Yes, I will, Senator Harkin.
The Chairman. Well, Mr. Becker, thank you very much. First
of all, in many ways, perhaps this was a good hearing, so that
people could see--both on television, on the internal C-Span
network here at the Senate--so people could see that you are
indeed a very calm, informed, judicious and accomplished
individual.
I congratulate you on your history, on what you've done in
your life. I can say to your two sons and your wife, you've got
to be very proud of Craig Becker. I say that as someone who
comes from a working-class family, someone whose own immediate
members of my family have been mistreated in ways that I won't
go into, on their job, and so those who represent working
people and who represent them in terms of helping them secure
their rights--their rights under law--to me, I can think of no
better calling than that.
I'm very proud of you, Mr. Becker, and I'm proud you're
going to be on the National Labor Relations Board. We will
report this out on Thursday. I don't know what the floor will
be like, but I can assure you that we will move this as
expeditiously as possible on the floor, and get you down there
so you can get to work. We've only got two members, it's about
time this Board starts doing things and addressing the backlog.
So, I thank you very much.
Mr. Becker. Thank you, Senator Harkin.
The Chairman. Thank you, congratulations.
The committee will stand adjourned until 10 a.m. on
Thursday.
[Additional material follows.]
ADDITIONAL MATERIAL
Response to Questions of Senator Enzi by Harold Craig Becker
Question 1. An article in The Nation magazine this weekend
supporting your confirmation noted that labor law changes in many areas
could be made without congressional action. Could NLRB take action to
impose a deadline of, for example, 10 or 15 days, in which to hold
certification elections?
Answer 1. Section 9 of the Act vests in the Board broad authority
to conduct and regulate representation elections. Subject to the
constraints of the principle of stare decisis and the requirements of
the Administrative Procedure Act, where applicable, the Board could
make changes in election procedures and rules if it determined, after
appropriate deliberation, that they were consistent with Congress'
intent and would improve the election process. The statute does not
establish a specific time period during which elections must be
conducted, but section 9(c) requires that before an election can be
held, the Board must provide for ``an appropriate hearing upon due
notice.''
Question 2. Would you ever support imposing such a certification
election deadline?
Answer 2. If I am confirmed as a member of the NLRB, I will not
assume the position with any preconceived agenda as to such questions
of administration. Whether I would ever support imposing any form of
deadline of the sort you describe would depend on the arguments, both
in favor and against doing so, properly addressed to the Board; the
evidence relevant to the impact of such an action; the views of the
Board's career staff, particularly staff in the representation unit and
in the regional offices who actually conduct elections; and any other
considerations relevant to the particular proposal at the time it is
made. In evaluating any such proposal, I would also consider, among
other factors, the number and complexity of issues the Board must
resolve prior to conducting elections, the nature of the proceedings
required to resolve the issues, and the difficulty of preparing to
conduct elections.
Question 3. The same article stated that NLRB could act under
current law to require an employer to turn over employee personal
contact information in any union organizing drive. Does NLRB have the
ability to make this requirement under current law?
Answer 3. Under current Board precedent, upheld by the Supreme
Court, employers are required to provide to a petitioner labor
organization the names and addresses of employees after the direction
of an election. See Excelsior Underwear, 156 NLRB 1236 (1966); NLRB v.
Wyman-Gordon Co., 394 U.S. 759 (1969). Current NLRB procedures require
that an employer prepare a list of eligible voters and their addresses
for an NLRB-conducted representation election and file it with the
NLRB's regional director who then makes the list available to all
parties, including individuals and/or labor organizations which have
filed a representation petition or intervened in the proceedings. See
NLRB Casehandling Manual paragraph 11312.1. If I am confirmed as a
member of the NLRB and if the Board is presented with an argument that
the standards governing the requirement to make a list of employees'
names and addresses available to a labor organization seeking to
represent the employees could and should be altered, I will consider it
with an open mind based on the terms of the act and relevant Supreme
Court precedents. Because questions concerning these issues could arise
before the Board, I do not believe it would be appropriate to address
them further in this context.
Question 4. Would you ever support requiring an employer to turn
over employee personal contact information in any union organizing
drive, either through rulemaking or Board decisions?
Answer 4. Please see my answer to question 3.
Question 5. The article also declared that NLRB could require
inside the workplace access for union organizers during campaigns.
Could NLRB require inside the workplace access for union organizers?
Answer 5. In Lechmere, Inc. v. NLRB, 502 U.S. 527, 535 (1992), the
Court held that absent discrimination, nonemployee union organizers are
not entitled to access to an employer's private property except in the
``rare'' case where ``the inaccessibility of employees makes
ineffective the reasonable attempts by nonemployees to communicate with
them through the usual channels''--for example, where the employees
work at a remote logging camp. Unless Congress amends the statute to
overrule that decision, the Board is bound to follow it.
Question 6. If you are confirmed, would you ever support
interpreting NLRA to allow inside the workplace access to union
organizers?
Answer 6. Absent a claim of discrimination, I believe that the
Supreme Court's decisions in Lechmere, Inc. v. NLRB, 502 U.S. 527
(1992), and NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), preclude
the Board from construing the act to require employers to grant
nonemployee union organizers access to their property when the union
has a reasonable ability to communicate with employees off the
property. Nevertheless, if I become a member of the NRLB and an
argument that the Board can and should require employers to grant such
access under some set of circumstances is made to the Board, I will
consider it with an open mind based on the terms of the act and
relevant Supreme Court precedents.
Question 7. The Nation article proposed that NLRB could act without
new statutory authority to increase penalties on employers for NLRA
violations. Does NLRB have the power to increase penalties under
current law?
Answer 7. Congress has vested the Board with specific remedial
authority in section 10 of the Act. The NLRB has authority to fashion
new remedies consistent with section 10 and relevant Supreme Court
precedent. Outside those bounds, use of new remedies must be authorized
by Congress. I do not believe the Board has authority to award double
or triple back pay as a remedy for a violation of section 8(a)(3)
without congressional action, nor do I believe that section 10 of the
Act currently vests in the Board the authority to impose civil
penalties. However, if I am confirmed as a member of the NLRB and if an
argument that the Board has and should exercise such authority is
presented to the NLRB, I will consider the argument with an open mind
based on the terms of the act and relevant Supreme Court precedent, and
with due regard for the principle of stare decisis and the importance
of stability in the law and respect for parties' legitimate reliance on
existing law.
Question 8. Would you support exercising any ability to increase
penalties on employers, either through rulemaking or Board decisions?
Answer 8. Please see my answer to question 7.
Question 9. Under the Gissel decision, in cases of employer
misconduct the NLRB may impose a duty to bargain, even if there is no
showing that a majority of employees want to unionize. Do you believe
Gissel could be applied more broadly under current law?
Answer 9. As you note, the Supreme Court held in NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969), that under appropriate circumstances
an order that an employer bargain with a union is a lawful and
appropriate remedy for employer unfair labor practices that prevent the
conduct of a fair election. If I am confirmed as a member of the Board
and if an argument for changing the current standards for issuance of
Gissel bargaining orders is made to the Board, I will evaluate the
argument with an open mind based on the terms of the statute and
relevant Supreme Court precedent and with due regard for the principle
of stare decisis and the importance of stability in the law and respect
for parties' legitimate reliance on existing law.
Question 10. Would you support broadening Gissel absent any changes
to the statute?
Answer 10. Please see my answer to question 9.
Question 11. Is it possible to impose mandatory binding interest
arbitration under the current NLRA and existing precedent?
Answer 11. Under current law, employers and unions may voluntarily
agree to submit contract issues they have been unable to resolve
through bargaining to binding arbitration. However, the Supreme Court
has stated that ``allowing the Board to compel agreement when the
parties themselves are unable to agree would violate the fundamental
premise on which the act is based.'' H.K. Porter Co. v. NLRB, 397 U.S.
99, 107-108 (1970). Thus, in my view, it would not be possible to
require binding arbitration of contract disputes under the current law
and existing precedents.
Question 12. Would you ever support imposing mandatory binding
interest arbitration without new congressional authority, either
through rulemaking or a Board decision?
Answer 12. Please see my answer to question 11. Nevertheless, if I
am confirmed as a member of the NLRB and if an argument that the Board
could impose mandatory binding interest arbitration is made to the
Board, I will consider it with an open mind based on the terms of the
act and relevant Supreme Court precedents.
Question 13. How do you define the term ``secret ballot election''
as used in the NLRA? Under your definition, what specific safeguards
must be in place to preserve the secrecy of the ballot?
Answer 13. The act does not define the term ``secret ballot
election.'' In general, a secret ballot election has been understood to
be an election in which voters cast their ballot in a manner such that
no one can see or otherwise determine how any individual voter marked
his or her ballot and in which that secrecy is maintained, to the
extent possible, throughout the election and any post-election
proceedings. The Board and Federal Courts of Appeals have developed an
extensive jurisprudence concerning what steps are necessary to insure
the secrecy of the ballot and what actions constitute objectionable
conduct, requiring that the election be rerun, on the grounds that they
interfered with the secrecy of the ballot. Because questions concerning
these issues could arise before the Board, I do not believe it would be
appropriate to address them further in this context.
Question 14. What specific metrics do you believe the Board should
be judged on? For example, do you believe the Board should be evaluated
on whether or how long it takes employers and unions to agree to first
contracts after a Board-supervised election? Can you please also
explain why the metrics you identify are appropriate under the National
Labor Relations Act?
Answer 14. The Board should be judged based on its fidelity to
Congress' intent as expressed in the National Labor Relations Act, as
amended, and on how effectively it implements the policies Congress
intended to effectuate through the act. Identifying specific metrics to
use in judging the Board is difficult given the numerous functions
performed by the Board, the various policies Congress intended to
effectuate through the act, and the roles other parties, for example,
the Board's General Counsel and the Federal Courts of Appeal, play
under the act. Reliance on a single metric or set of metrics has the
potential to create incentives to improve performance as judged by the
metric even under circumstances where doing so is not consistent with
Congress' intent and does not effectuate the policies Congress intended
to effectuate through the act. If I am confirmed, I intend to fully
inform myself concerning what metrics the Board currently employs
before drawing any conclusions about which metrics are most
appropriate.
Response to Questions of Senator Burr by Harold Craig Becker
Question 1. Do you believe the NLRB must maintain an online
database of all card check recognitions and any subsequent union
decertification elections?
Answer 1. The National Labor Relations Act does not require that
the NLRB make any particular data publicly available, but I am not at
this point familiar with any other statutory or other requirements that
may be applicable. If confirmed, it would certainly be my intent to
comply with any such requirements. I am aware that the Board has
historically and continues to maintain publicly available data on
elections and unfair labor practice proceedings, and that this data is
increasingly available on the Board's Web site. If confirmed, I would
be supportive of that effort.
Question 2. Do you support ``voluntary unionism,'' i.e., that
employees have the right to voluntarily choose to participate in unions
or refrain from doing so?
Answer 2. Yes. The act vests in employees the right to self-
organization and to form, join, or assist labor organizations and the
right to refrain from doing any and all of such activities with the
limited exception provided in section 8(a)(3) as modified by section
14(b). If I am confirmed, I will faithfully apply those provisions of
the law.
Question 3. Do you believe that a secret ballot election better
reflects the true freedom of choice guaranteed workers by Section 7 of
the NLRA to engage in collective bargaining or to refrain from doing
so?
Answer 3. Please see my answer to Senator Alexander's July 30,
2009, Question 25:
``I believe the answer to that question depends on the
procedures used to conduct the secret ballot election or card
check process, the rules governing each, and the legal
consequences that attach to their outcomes. Because questions
concerning whether a secret ballot election is a superior
mechanism to the card check process may arise before the Board,
for example, in the context of a decision whether to order a
rerun election or issue a bargaining order based on a card
showing of majority support, I do not believe it would be
appropriate to address them further in this context.''
Question 4. Do you agree with the Supreme Court that ``[b]y its
plain terms, . . . the NLRA confers rights only on employees, not on
unions or their nonemployee organizers.'' Lechmere, Inc. v. NLRB, 502
U.S. 527, 532 (1992).
Answer 4. The Board is bound by the holding in Lechmere. In
Lechmere, the Supreme Court construed the terms of section 7 of the Act
which vests rights in ``employees.'' In the context of the statement
provided by the Supreme Court in Lechmere, I agree that section 7
expressly vests rights only in employees. Other provisions of the act
vest rights in labor organizations and employers, for example, section
9 which permits both labor organizations and employers to file
petitions for an election under specified circumstances.
Question 5. Do you fully support the North Carolina Right To Work
law--N.C. Gen. Stat. 95-78 to 84? Would you use your position at NLRB
to challenge any aspect of this law or its prior interpretation?
Answer 5. Section 14(b) of the Act permits States to enact laws
that prohibit the execution or application of agreements requiring
membership in a labor organization as a condition of employment. If I
am confirmed, I will faithfully apply that provision of the NLRA, and I
will fully respect any law that North Carolina has enacted pursuant to
the permission contained in NLRA 14(b). Accordingly, I would not, nor
could I, use my position to challenge any such law.
Response to Questions of Senator Isakson by Harold Craig Becker
Question 1. I understand from your testimony today that you will
recuse yourself from any cases involving the Service Employees
International Union. Will you also recuse yourself from cases involving
SEIU locals?
Answer 1. In the course of my work for SEIU, I have represented a
small number of local unions affiliated with SEIU. Pursuant to 5 CFR
2635.502, for a period of 1 year after I last provided services to a
former client, including any such locals, I will not participate in any
particular matter involving specific parties in which a former client
is or represents a party, unless I am first authorized to participate,
pursuant to 5 CFR 2635.502(d). In addition, I understand that as an
appointee I am required to sign the Ethics Pledge under Executive Order
No. 13490 and that I will be bound by the requirements and restrictions
therein in addition to the requirements of 5 CFR 2635.502. Accordingly,
I will not for a period of 2 years from the date of my appointment
participate in any particular matter involving specific parties that is
directly and substantially related to a former client as those terms
are defined in Executive Order No. 13490, including any such locals,
unless I am first authorized to participate, pursuant to Executive
Order No. 13490 Sec. 3. 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. Finally, in any such case
where there is no actual conflict but my participation might be
perceived as creating an appearance of conflict, I will consult with
agency ethics officials and review applicable rules and precedents to
determine whether recusal under the particular circumstances presented
would be appropriate.
Question 2. Do you believe the NLRB has the authority under current
law to compel a non-union employer to bargain with a union in the
absence of a secret-ballot election?
Answer 2. The National Labor Relations Act was amended in 1947 to
give employers the right to petition for a secret-ballot election if
presented with a demand for recognition by a labor organization. This
right is specified in Section 9(c)(1)(B) of the Act and cannot be
changed except by Congress. The Supreme Court has held, however, that
where an employer has engaged in unfair labor practices ``likely to
destroy the union's majority and seriously impede the election'' the
employer may not insist on an election and can be ordered by the Board
to bargain. NLRB v. Gissel Packing Co., 395 U.S. 575, 600 (1969).
Question 3. You stated today that that the SEIU is not party to
many NLRB cases. Do you know how many cases in the current NLRB backlog
are ones in which SEIU is a party?
Answer 3. I am not personally aware of any cases in which SEIU is a
party currently pending before the NLRB itself and a review of
available public records does not reveal any. There are a small number
of cases pending before the Board in which a local labor organization
affiliated with SEIU and currently in trusteeship, as that term is used
in 29 U.S.C. 462, is a party.
Question 4. What is your opinion of the National Labor Relations
Board's obligation to follow precedent? Are the Board's prior decisions
controlling for future cases? Are there any existing decisions that you
believe the Board decided improperly and should be revisited? What
standard would you apply in determining whether to overrule a prior
Board decision?
Answer 4. I think the NLRB, like other adjudicatory agencies,
should respect its own precedent and the rule of stare decisis. I think
the Board should respect parties' legitimate reliance on past precedent
to guide their actions. I think that the Board should not depart from
its own precedent without citing that precedent and openly
acknowledging that it is overruling past precedent. I think that when
the Board decides to overrule prior precedent it should do so expressly
and only after fully explaining the basis of its decision.
I believe that is the standard applied to the Board in the courts
of appeals and it is the standard I would apply in considering whether
to overrule a prior Board decision.
Because the question of whether a particular decision was incorrect
and should be overruled may arise before the Board, I do not believe it
would be appropriate to address the question in this context.
Question 5. What specific metrics do you believe the Board should
be judged on? For example, do you believe the Board should be evaluated
on whether or how long it takes employers and unions to agree to first
contracts after a Board-supervised election? Can you please also
explain why the metrics you identify are appropriate under the National
Labor Relations Act?
Answer 5. The Board should be judged based on its fidelity to
Congress' intent as expressed in the National Labor Relations Act, as
amended, and on how effectively it effectuates the policies Congress
intended to effectuate through the act. Identifying specific metrics to
use in judging the Board is difficult given the numerous functions
performed by the Board, the various policies Congress intended to
effectuate through the act, and the roles other parties, for example,
the Board's General Counsel and the Federal courts of appeal, play
under the act. Reliance on a single metric or set of metrics has the
potential to create incentives to improve performance as judged by the
metric even under circumstances where doing so is not consistent with
Congress' intent and does not effectuate the policies Congress intended
to effectuate through the act. If I am confirmed, I intend to fully
inform myself concerning what metrics the Board currently employs
before drawing any conclusions about which metrics are most
appropriate.
Question 6. I understand from your response to me today that the
change from certification by secret ballot to certification by card
check requires congressional action. However, there are multiple
sections of the Employee Free Choice Act. Which provisions of EFCA
could be implemented without congressional action? Which provisions
require congressional action?
Answer 6. The Employee Free Choice Act has three substantive
sections. The first section establishes a procedure by which a union
could be certified as a bargaining representative on the basis of
signed authorization cards. As I stated at the hearing, this change
would require action by Congress and could not be accomplished
administratively.
The second section establishes procedures for mediation and, if
necessary, binding arbitration in circumstances where a union or
employer engaged in bargaining for a first contract are unable to reach
agreement. Under current law, employers and unions may voluntarily
agree to submit contract issues they have been unable to resolve
through bargaining to binding arbitration. However, the Supreme Court
has stated that ``allowing the Board to compel agreement when the
parties themselves are unable to agree would violate the fundamental
premise on which the act is based.'' H.K. Porter Co. v. NLRB, 397 U.S.
99, 107-108 (1970). Thus, action by Congress would also be required to
implement these procedures.
The third and final section of EFCA would establish civil penalties
and a treble back pay remedy for certain unfair labor practices, and
require the Board to seek injunctions where it finds reasonable cause
to believe certain violations of the act have occurred. Congress has
vested the Board with specific remedial authority in section 10 of the
Act. The NLRB has authority to fashion new remedies consistent with
section 10 and relevant Supreme Court precedent. Outside those bounds,
use of new remedies must be authorized by Congress. Section 10(c) vests
in the Board authority to order a party to take affirmative action,
including re-instatement with or without back pay. I do not believe the
Board has authority to award double or triple back pay as a remedy for
a violation of section 8(a)(3) without congressional action nor do I
believe that section 10 currently vests in the Board the authority to
impose the penalties discussed above. However, if I am confirmed as a
member of the NLRB and if an argument that the Board has and should
exercise such authority is presented to the NLRB, I will consider the
argument with an open mind based on the terms of the Act and relevant
Supreme Court precedent, and with due regard for the principle of stare
decisis and the importance of stability in the law and respect for
parties' legitimate reliance on existing law.
As for the ability to seek injunctive relief, section 10(j) of the
current Act provides that the Board has power to seek an injunction in
any case where a complaint issue alleging the statute has been
violated, therefore, it is currently within the discretion of the Board
to decide in any particular case whether it will petition in Federal
district court for an injunction. Of course, only Congress can require
that the Board do so under the circumstances specified in the EFCA.
Question 7. Recently, in The Nation magazine, Dmitri Iglitzin, an
attorney that has represented the AFL-CIO, wrote:
``Most legal scholars and labor experts believe that the NLRB
has the authority to enact procedural changes that could, among
other things:
drastically shorten the timeframe for holding union
elections;
eliminate cumbersome pre-election procedures that
allow employers to dispute who is eligible to vote in such
elections;
require the employer to turn over employee names,
addresses and phone numbers early in any union organizing
drive;
require equal access to both workers and the
workplace for unions during campaigns; and
increase the penalties on companies that violate
their workers' legal rights.''
In which of these items, in your opinion, could be accomplished
without congressional action?
Answer 7. It is my understanding that Dmitri Iglitzin has never
represented the AFL-CIO in any matter.
With regard to the suggestion that the Board ``could drastically
shorten the timeframe for holding union elections,'' I would note that
the Board is constrained in that regard by the current statutory
requirement in section 9(c) that before an election can be held, the
Board must provide for ``an appropriate hearing upon due notice.'' This
hearing requirement is often cited as the primary reason for the time
it currently takes to schedule and conduct a Board election. Only
congressional action could eliminate the hearing requirement. The
statute does not establish any specific time period during which such
elections must be conducted except the hearing requirement described
above.
With regard to the suggestion that the Board could ``eliminate
cumbersome pre-election procedures that allow employers to dispute who
is eligible to vote in such elections,'' as explained above, section
9(c) requires that the Board provide for ``an appropriate hearing upon
due notice'' prior to directing an election. That pre-election
procedure cannot be eliminated without congressional action.
With regard to the suggestion that the Board could require ``equal
access,'' in Lechmere, Inc. v. National Labor Relations Board, 502 U.S.
527, 535 (1992), the Court held that absent discrimination, nonemployee
union organizers are not entitled to access to an employer's private
property except in the ``rare'' case where ``the inaccessibility of
employees makes ineffective the reasonable attempts by nonemployees to
communicate with them through the usual channels''--for example, where
the employees work at a remote logging camp. Unless Congress amends the
statute to overrule that decision, the Board is bound to follow it.
With regard to requiring employers to turn over contact information
for employees, under current Board precedent, upheld by the Supreme
Court, employers are required to provide to a petitioner labor
organization the names and addresses of employees after the direction
of an election. See Excelsior Underwear, 156 NLRB 1236 (1966); NLRB v.
Wyman-Gordon Co., 394 U.S. 759 (1969). Current NLRB procedures require
that an employer prepare a list of eligible voters and their addresses
for an NLRB-conducted representation election and file it with the
NLRB's regional director who then makes the list available to all
parties, including individuals and/or labor organizations which have
filed a representation petition or intervened in the proceedings. NLRB
Casehandling Manual paragraph 11312.1. The Court held that the
promulgation of such a requirement was a proper exercise of the Board's
authority to oversee the conduct of elections. Because questions
concerning whether the Board has authority to, in any manner, alter the
timing or preconditions for imposition of such a requirement may arise
before the Board, I do not believe it would be appropriate to address
them specifically in this context.
Finally, with regard to penalties on employers who violate their
workers' rights, please see my response to your Question 6.
Response to Questions of Senator McCain by Harold Craig Becker
Question 1. Please describe the nature of your involvement in
organizing home health-care and/or home day-care workers in any way.
What mechanisms (e.g., card check or elections) were used to organize
these workers in each State?
Answer 1. I have provided legal counsel to SEIU and, in some cases,
to local labor organizations affiliated with SEIU, concerning their
efforts to assist home health-care workers to organize and engage in
collective bargaining. I have had no similar involvement in relation to
home day-care workers. In the States in relation to which I have
provided some such legal counsel and in which home-care workers were
able to make a choice concerning whether they wished to be represented
and have subsequently engaged in collective bargaining, including
California, Illinois, Michigan, Ohio, and Washington, the mechanism
through which the choice was made was an election to the best of my
knowledge.
Question 2. Mr. Becker, as counsel to the SEIU, you are familiar
are you not with the dispute between the SEIU International and the
National Union of Healthcare Workers formed by ousted members of an
SEIU local in California?
Answer 2. I am aware that there is a controversy involving SEIU and
the National Union of Healthcare Workers.
Question 3. Are you aware that the NUHW has petitioned the NLRB to
hold elections at dozens of health care facilities where workers are
currently represented by the SEIU?
Answer 3. Although I have had no personal involvement in the
matters, I am aware that petitions have been filed seeking elections at
some facilities where employees are currently represented by a local
labor organization affiliated with SEIU which is currently in
trusteeship, as that term is used in 29 U.S.C. 462.
Question 4. And you know that some of those elections have been
blocked by charges of unlawful conduct filed by the SEIU against the
NUHW with the NLRB General Counsel?
Answer 4. Although I have had no personal involvement in the
matters, I am aware that some unfair labor practice charges have been
filed that may have blocked some elections for some periods of time.
Question 5. All of these petitions and the unlawful conduct charges
are likely to come before the NLRB. Do you intend to recuse yourself
from all those cases?
Answer 5. Yes.
Question 6. Have you ever performed work for and/or provided advice
to ACORN or ACORN-affiliated groups while employed by your current
employers or on a volunteer basis? Did you perform such work in prior
positions? Please describe the nature of that work.
Answer 6. No.
Question 7. Have you ever met with or spoke to Mr. Wade Rathke?
Have you worked with and/or provided advice to Mr. Rathke or Service
Employees International Union (SEIU) Locals 880 or 100 or their
officials/members?
Answer 7. I am not certain whether I have ever met or spoken with
Mr. Rathke, but if I believe it would have been on a casual, unplanned,
nonprofessional basis. I have never worked with or provided advice to
Mr. Rathke or SEIU Local 100 or its officials or members. I have worked
with and provided advice to SEIU Local 880 (now merged with two other
locals into SEIU Healthcare Illinois-Indiana) and its members. I have
worked with officials of Local 880, but never provided them advice as
individuals.
Question 8. Mr. Rathke has noted your success in crafting and
executing legal strategies for SEIU throughout your career. He has
stated:
``For my money Craig's signal contribution has been his work
in crafting and executing the legal strategies and protections
which have allowed the effective organization of informal
workers, and by this I mean home health-care workers, under the
protection of the National Labor Relations Act. . . . His role
was often behind the scenes devising the strategy with the
organizer and lawyers, writing the briefs for others to file,
and putting all of the pieces together, but he was the go-to-
guy on all of this.''
http://chieforganizer.org/2009/04/30/becker-to-the-nlrb/. What specific
legal strategies was he referencing?
Please provide a copy of all briefs or memos you authored in this
area as referenced by Mr. Rathke.
Answer 8. I am not certain what Mr. Rathke was referring to in the
quoted statement. The protection of home health-care workers under the
National Labor Relations is well established if they are employed by a
private agency. Mr. Rathke might have been referring to several briefs
I have written concerning the coverage of home health-careworkers under
the Fair Labor Standards Act. The most recent brief I wrote in that
area was in the case of Long Island Care at Home, Inc. v. Coke, 551
U.S. 158 (2007). I have already provided a copy of that brief to the
committee. Mr. Rathke might also have been referring to counsel I have
provided to SEIU concerning the Union's efforts to assist home-care
workers employed in a variety of publicly funded programs to organize
and engage in collective bargaining under State law. In many States,
the employment status of such workers has been uncertain because the
duties and obligations of employers are split among several parties
with respect to these workers. Often the State or other public entity
sets the hourly wage and the hours of work of the home-care workers,
but the consumers whom they care for hire, supervise and can terminate
the workers. As a result, there have been conflicting decisions under a
variety of labor and employment laws in various States concerning which
entities had which obligations under those laws (for example, to insure
compliance with wage and hour law, to pay unemployment insurance, to
obtain workers' compensation insurance, and to engage in collective
bargaining if the workers duly select a representative). I have
provided advice and counsel to SEIU (and in some cases to local labor
organizations affiliated with SEIU) in relation to its efforts to
assist such home-care workers who wanted to organize to do so and to
obtain recognition for their chosen representative from the State or
other public entity which could engage in meaningful bargaining with
the home-care workers about the terms of their employment.
Question 9. To the extent Mr. Rathke's statement regarding your
having written briefs for others to file is correct, please provide a
list of all briefs or pleadings you wrote for other parties to file (if
any) and list the courts or administrative agencies in which they were
filed.
Answer 9. I have described all briefs and pleadings that Mr. Rathke
might have been referring to in my answer to Question 9.
Question 10. Have you discussed labor law or SEIU efforts to
organize or obtain collective bargaining rights for 37,000 home health-
care workers with former Governor Blagojevich or any members of his
staff? Did you have any role in developing legislation, Executive
orders or other advice to assist SEIU or Governor Blagojevich with
organizing home health-care workers or other workers in Illinois?
Please provide details and specific pieces of legislation, Executive
orders or memos you worked on.
Answer 10. As I testified in response to your question at my
confirmation hearing on February 2, 2010, while I was in practice in
Illinois, I represented and provided counsel to one of the local labor
organizations affiliated with SEIU in Illinois which, for a period of
time long preceding the Blagojevich administration, had been working to
organize home-care workers. As explained in my answer to your Question
9, in many States, the employment status of such workers has been
uncertain because the duties and obligations of employers are split
among several parties with respect to these workers. Often the State or
other public entity sets the hourly wage and the hours of work of the
home-care workers, but the consumers whom they care for hire, supervise
and can terminate the workers. As a result, there have been conflicting
decisions under a variety of labor and employment laws in various
States concerning which entities had which obligations under those laws
(for example, to insure compliance with wage and hour law, to pay
unemployment insurance, to obtain workers' compensation insurance, and
to engage in collective bargaining if the workers duly select a
representative). In Illinois, the agency which administers the State's
public sector collective bargaining law had declined to assume
jurisdiction over a petition concerning the representation of home-care
workers. I was party to discussions of this matter with representatives
of several prior administrations in Illinois. After Governor
Blagojevich was elected, I had discussions with members of his staff,
and on one occasion, I participated in a discussion that included the
Governor. My discussion with the members of the Governor's staff and
with the Governor had to do with the legal technicalities involved in
the drafting of an executive order and legislation, eventually adopted
by both houses of the State legislature, which extended collective
bargaining to home-care workers. I participated in these discussions
because of my expertise in this area, having previously provided
counsel concerning similar legislation in California which was adopted
by the legislature and signed by a Republican Governor.
Question 11. According to the Wall Street Journal, a second
Executive order contemplated by former Governor Blagojevich was
designed to enable the SEIU to organize workers in the State who care
for developmentally disabled people in their homes. Did you have any
involvement in preparing or developing a reported second Executive
order for Governor Blagojevich to expand organizing to this group? Did
you have any involvement with the development of Executive Order 15-
2009, signed by Illinois Governor Pat Quinn on June 26, 2009 to allow
organizing of these workers? Have you been involved with the SEIU
organizing campaign that began after Governor Quinn's executive order
was signed? Please describe the nature of any involvement.
Answer 11. I have had no involvement with these matters.
Question 12. Have you ever had any interactions or relationships
with the Long Term Care Housing Corp., the Homecare Workers Training
Center or their officers, directors, employees or affiliates?
Answer 12. No.
Question 13. Have you been involved in any manner with the State
bills/laws that allow card check organizing in New York, New Mexico,
Illinois, New Jersey, New Hampshire, Oregon, and Massachusetts? Please
describe the nature of your involvement.
Answer 13. No.
Question 14. Enshrined in our Constitution, and implemented in
numerous statutes, Executive orders, and court decisions, is our
Nation's recognition of the status of Indian tribes as ``domestic
dependent'' sovereign governments. In fact, our Nation has long
acknowledged its great moral duty toward these sovereign tribes
contains a ``trust responsibility'' to protect and encourage tribal
governments. However, as you may know, in 2004, the NLRB overruled 30
years of precedent and held the NLRA applicable to a tribally-owned
enterprise located on tribal lands. Therefore, as I read this decision,
the NLRB believes it can countermand the laws and policies we have
enacted to support tribal employment laws, like tribal employment
rights laws. These laws are critically important on the reservation,
which have struggled to create employment opportunities for Indians. Do
you agree with this San Manuel decision? What Federal law principles
can justify this decision?
Answer 14. Because questions concerning the application of the NLRA
to enterprises located on tribal lands may come before the Board, I do
not believe it would be appropriate to address them in this context.
Question 15. I am very concerned that, unless the San Manuel
decision is overturned, it could apply to many other entities operating
on Indian tribal lands--including schools, hospitals, construction
crews, etc., especially if the current Congress were to actually enact
the so-called ``Employee Free Choice Act''. Many in Congress, including
Senator Inouye, Indian Affairs Committee Ranking Member Senator John
Barrasso, Congressmen Dan Boren and Tom Cole and others have urged that
the governmental status of Indian tribes be respected if the EFCA bill
proceeds. What are your thoughts on this?
Answer 15. Please see my answer to Question 14 above. To the extent
this question concerns issues beyond the scope of the NLRA as currently
written, it is appropriately addressed by Congress.
Question 16a. Have you ever spoken to Andy Stern or any person
affiliated with the SEIU as to what the SEIU's expects from you if you
are confirmed for a seat on the National Labor Relations Board?
Answer 16a. No, at no time have I discussed with any person any
action I would or would not take as a member of the Board.
Question 16b. With whom did you speak and what did they say?
Answer 16b. Please see my prior answer.
Question 17a. Have you spoken with any person affiliated with the
AFL-CIO as to what the AFL-CIO's expectations are for you if you are
confirmed for a seat on the National Labor Relations Board?
Answer 17a. No, at no time have I discussed with any person any
action I would or would not take as a member of the Board.
Question 17b. With whom did you speak and what did they say?
Answer 17b. Please see my prior answer.
Question 18a. Have you discussed with Andy Stern or any person
affiliated with the SEIU or the AFL-CIO Board decisions that SEIU or
the AFL-CIO would like to see reversed?
Answer 18a. No, at no time have I discussed with any person any
action I would or would not take as a member of the Board.
Question 18b. With whom did you speak and what decisions did they
say they wanted to see reversed?
Answer 18b. Please see my prior answer.
Question 19a. Have you discussed with Andy Stern or any person
affiliated with the SEIU or the AFL-CIO how provisions of the Employee
Free Choice Act could be administratively adopted by the Board either
through rulemaking or Board decisions.
Answer 19a. No, at no time have I discussed with any person any
action I would or would not take as a member of the Board.
Question 19b. With whom did speak and what did they say?
Answer 19b. Please see my prior answer.
Question 20. Have you played any role in the public statements
issued by the SEIU and the AFL-CIO critical of Board decisions issued
during the past 10 years?
If yes, statements involving which decisions?
Answer 20. I may have given legal counsel to SEIU and the AFL-CIO
concerning public statements critical of Board decisions issued during
the past 10 years. I cannot, however, recall giving such legal counsel
relating to specific statements involving specific decisions.
Question 21. Have you discussed with Wilma Liebman, the Board's
current Chairman, and/or Mark Pearce, the other Democrat nominee, what
changes the political majority on the Board plan to make in Board law?
Answer 21. No, at no time have I discussed with Wilma Liebman, the
Board's current Chairman, and/or Mark Pearce, the other Democrat
nominee, what changes the political majority on the Board plan to make
in Board law.
Question 22. Have you ever discussed with anyone whether card check
could be imposed by the Board under the NLRA?
Answer 22. No, at no time have I discussed with any person any
action I would or would not take as a member of the Board.
Question 23. What is your view on whether the timeframe should be
shortened from the date a petition is filed to the date a
representation election is held?
Answer 23. If I am confirmed as a member of the NLRB, I will not
assume the position with any preconceived agenda as to such questions
of administration. I will seek the benefit of the immense experience
and expertise of the Board's career staff in administering and
enforcing the Act, in particular, in conducting elections. I will
consult with my fellow Board members. The Board's regional office
staffs and central representation case unit have been involved in
thousands of elections. If I am confirmed as a member of the NLRB, I
would seek their counsel before reaching any conclusion on whether such
a timeframe should be imposed. If suggestions for mandating such a
timeframe are made, I will evaluate them with an open mind based on the
terms of the statue and relevant Supreme Court precedent and with due
regard for the principle of stare decisis and the importance of
stability in the law and respect for parties' legitimate reliance on
existing law. In considering any such suggestion, I would consider,
among other factors, the number and complexity of issues the Board must
resolve prior to conducting elections, the nature of the proceedings
required to resolve the issues, and the difficulty of preparing to
conduct elections.
Question 24. Do you think that any form of employer speech should
be limited during an organizing campaign in any manner?
Answer 24. As I stated at my confirmation hearing, in answer to a
question from Senator Isakson, the current law clearly protects
employers' ability to express their views--not only the National Labor
Relations Act, but the first amendment to the U.S. Constitution. It is
clear that employers have legitimate interests and have an indisputable
right to express their views on the question of whether their employees
should unionize. The Board, with the approval of the Supreme Court,
has, however, held that the Act bars employer expression that contains
a threat of reprisal or force or promise of benefit. The Board has also
held that making speeches on company time to massed assemblies of
employees during the last 24 hours before an election is objectionable
conduct and grounds for overturning the results of an election.
Question 25. Have you participated in any cases currently pending
before the Board?
Answer 25. Yes.
Question 26. How many? In what capacity? Please provide a list?
Answer 26. Dana Co., No. 7-CA-46965, as counsel to amicus curiae;
Hacienda Resort Hotel & Casino, 351 NLRB 504 (2007), as counsel to
amicus curiae on review of prior Board decision in Ninth Circuit and on
prior remand to Board; Correctional Medical Services, 349 NLRB 1198
(2007), as counsel to petitioner in Court of Appeals; Tribune
Publishing Co., 351 NLRB 196 (2007) (may remain pending after petition
for review denied for purposes of compliance), as counsel to putative
intervenor in Court of Appeals; Guardsmark, LLC, 344 NLRB 809 (2005)
(may remain pending after petition for review granted by Court of
Appeals), as counsel to petitioner in Court of Appeals; Randell
Warehouse of Ariz., Inc., 328 NLRB 1034 (1999) (may remain pending
after petition for review granted by Court of Appeals), as counsel to
intervenor in Court of Appeals.
Question 27a. Have you taken the Administration's ``Ethic's
Commitments by Executive Branch Personnel?''
Answer 27a. If confirmed, I will take the President's Ethics Pledge
upon confirmation. Please see my answer below.
Question 27b. Do you intend to?
Answer 27b. Yes. I have entered into an ethics agreement with the
NLRB that provides:
``I understand that as an appointee I am required to sign the
Ethics Pledge (Executive Order No. 13490) and that I will be
bound by the requirements and restrictions therein in addition
to the commitments I have made in this and any other ethics
agreement.''
Question 28. Do you intend to seek a waiver from the Director of
OMB [permitted by paragraph 3]?
Answer 28. No.
Question 29. Are you familiar with 5 CFR Section 2635.02 which
provides that an employee is required to consider whether the
employee's impartiality would reasonably be questioned if the employee
were to participate in a particular matter involving specific parties
where persons with certain personal or business relationship with the
employee are involved. If the employee determines that a reasonable
person would question the employee's impartiality, or if the agency
determines that there is an appearance concern, then the employee
should not participate in the matter unless he or she has informed the
agency designee of the appearance and received authorization from the
agency.
Answer 29. Yes, I am familiar with 5 CFR Section 2635.502 which
provides:
``Where an employee knows that a particular matter involving
specific parties is likely to have a direct and predictable
effect on the financial interest of a member of his household,
or knows that a person with whom he has a covered relationship
is or represents a party to such matter, and where the employee
determines that the circumstances would cause a reasonable
person with knowledge of the relevant facts to question his
impartiality in the matter, the employee should not participate
in the matter unless he has informed the agency designee of the
appearance problem and received authorization from the agency
designee in accordance with paragraph (d) of this section.''
Question 30. Apart from the Executive Order, don't you believe that
if you participated in decisions raising issues on which the AFL-CIO or
the SEIU have taken a public position while you were employed by them
that your impartiality would reasonably be questioned?
Answer 30. If at any time during my service on the Board a case
comes before me relating in any way to SEIU or the AFL-CIO 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. Moreover, in any such case where there is no actual
conflict but my participation might be perceived as creating an
appearance of conflict, I will consult with agency ethics officials and
review applicable rules and precedents to determine whether recusal
under the particular circumstances presented would be appropriate.
Question 31. Since 1990 you have been a member of the office of
General Counsel for the SEIU in Los Angeles and Chicago and since 2004
Staff Counsel for the AFL-CIO in Chicago. Mr. Becker, do you understand
that you are the first person in the history of the National Labor
Relations Board to be nominated for a full term on the Board who, if
confirmed, would go on the Board directly from a labor organization, in
your case two of the Nation's largest international unions, the AFL-CIO
and the SEIU International? Are there any unique challenges posed by
your background that members of the committee should take into
consideration as they consider whether you can fulfill your obligation
to carry out your duties as a member of the Board fairly, impartially
and in a non-biased fashion?
Answer 31. I do not believe that there are unique challenges. Many
NLRB members came from private practice where they had represented
labor or management or employees on issues that could come before the
Board. One former member came to the Board directly from service as
Director of Labor Law Policy at the U.S. Chamber of Commerce. As I
testified at my confirmation hearing and repeated in answer to your
Question 31, above, if confirmed, I will avoid any conflicts of
interest and carry out my Board duties fairly, impartially and in
strict accordance with law.
Question 32. You testified that if confirmed to the National Labor
Relations Board you intended to scrupulously comply with paragraph 2 of
the President's Executive Order, Ethics Commitments by Executive Branch
Personnel. I accept that to mean that you do not intend to seek a
waiver from the application of paragraph 2 from participating in any
matter that comes before the Board that is directly or substantially
related to the AFL-ClO or the SEIU International. Is that correct?
Answer 32. Yes.
Question 33. Do you agree that a charging or a charged party in a
case before the NLRB is a ``party'' under the Ethics Pledge?
Answer 33. Yes.
Question 34. Do you intend to participate in cases that are
directly or substantially related to the AFL-CIO or the SEIU
International after your first 2 years on the Board are concluded?
Answer 34. Please see my answer to Question 31 above.
Question 35. Does your answer to Question 33 mean that, if
confirmed, during your first 2 years on the Board you do not intend to
participate in any case that is filed by the NLRB General Counsel based
on the recent charges filed by the SEIU International alleging that the
National Union of Healthcare Workers (formed by leaders whose SEIU
local was put into trusteeship by the SEIU International) was engaged
in unlawful conduct. Please answer ``yes'' or ``no'' and then explain.
If your answer is in the negative, please explain how you can ethically
participate in such cases.
Answer 35. I have had no involvement and am not familiar with any
charges alleging unlawful conduct by the National Union of Healthcare
Workers. However, if I am confirmed, if the charges you describe result
in the issuance of a complaint, if the issuance of a complaint results
in the matter coming before the Board, and if the matter comes before a
panel to which I am assigned, I will recuse myself from any
consideration of the matter.
Question 36. Do you intend to participate in cases involving the
petitions for election that were blocked by the latter charges of the
SEIU local? If your answer is in the affirmative, please explain how
you can ethically participate in such cases.
Answer 36. Please see my answer to Question 6 above.
Question 37. Do you intend to participate in any such cases
referred to in Questions 5 and 6 after your first 2 years on the Board
are concluded?
Answer 37. Please see my answer to Questions 6 and 31 above.
Question 38. Does your answer to Question 33 mean that, if
confirmed, during your first 2 years on the Board, you do not intend to
participate in any case that is filed by the NLRB General Counsel based
on charges filed by an SEIU local alleging that the NUHW, which
petitioned for an election, was engaged in unlawful conduct? Please
answer ``yes'' or ``no'' and then explain. If your answer is in the
negative, please explain how you can ethically participate in such
cases.
Answer 38. Please see my answers to Questions 6 and 31 above.
Question 39. Do you agree that the SEIU International has a
substantial interest in the resolution of cases filed by the NLRB
General Counsel based on charges filed by an SEIU local alleging that
the NUHW, which petitioned for an election, was engaged in unlawful
conduct? Please answer ``yes'' or ``no.'' If your answer is in the
negative, please explain?
Answer 39. Please see my answer to Question 6 above. I do not
believe it is appropriate to opine on hypothetical cases, on cases that
have not yet been filed, or on cases involving facts of which I am not
aware at this time. If confirmed, once the facts of a particular matter
involving specific parties are presented to me, I intend to follow the
commitments I described in my answer to Question 31 above.
Question 40. Does your answer to Question 33 mean that, if
confirmed, during your first 2 years on the Board you do not intend to
participate in any case involving a petition filed by the NUHW seeking
an election in units represented by an SEIU local? Please answer
``yes'' or ``no'' and then explain. If your answer is in the negative,
please explain how you can ethically participate in such cases.
Answer 40. Please see my answer to Question 6 above. I do not
believe it is appropriate to opine on hypothetical cases, on cases that
have not yet been filed, or on cases involving facts of which I am not
aware at this time. If confirmed, once the facts of a particular matter
involving specific parties are presented to me, I intend to follow the
commitments I described in my answer to Question 31 above.
Question 41. Do you agree that without regard to the Ethics Pledge
that if you were to participate in any of the cases referred to in the
above Questions 36, 39 and 41, your impartiality as a result of being a
former Associate General Counsel of the SEIU International for nearly
20 years could reasonably be questioned?
Answer 41. Please see my answers to Questions 6, 31, 36, 39 and 41
above. I do not believe it is appropriate to opine on hypothetical
cases, on cases that have not yet been filed, or on cases involving
facts of which I am not aware at this time. If confirmed, once the
facts of a particular matter involving specific parties are presented
to me, I intend to follow the commitments I described in my answer to
Question 31 above.
Question 42. If your answer to the above Question 42 is in the
affirmative, will you commit now as a member of the Bar and without
regard to the Ethics Pledge and 5 CFR Section 2635.502 to recuse
yourself from all such cases? Please answer ``yes'' or ``no.'' If your
answer is in the negative, how will it be possible to protect the
integrity of the NLRB and the perception of that Board as an impartial
adjudicator of disputes?
Answer 42. I do not believe it is appropriate to opine on
hypothetical cases, on cases that have not yet been filed, or on cases
involving facts of which I am not aware at this time. If confirmed,
once the facts of a particular matter involving specific parties are
presented to me, I intend to follow the commitments I described in my
answer to Question 31 above.
Question 43. Do you believe your ethical obligations as a member of
the Bar are limited to the Ethics Pledge and 5 CFR 2635.502? Please
answer ``yes'' or ``no'' and then fully explain your answer.
Answer 43. No. If at any time during my service on the Board a case
comes before me in which recusal is not required by 5 CFR 2635.502 or
by my ethics pledge, but where the particular circumstances are such
that my participation would constitute a conflict of interest, I will
recuse myself. Moreover, in any such case where there is no actual
conflict but my participation might be perceived as creating an
appearance of conflict, I will consult with agency ethics officials and
review applicable rules and precedents to determine whether recusal
under the particular circumstances presented would be appropriate.
Question 44. As to each of the following cases did the AFL-CIO or
the SEIU International file an amicus brief or, after the case was
issued, take a public position that the case was wrongly decided and/or
should be reversed? In answer to your question, for each case please
indicate whether the AFL-CIO or the SEIU International filed an amicus
brief or took a public position that the case was wrongly decided and/
or should be reversed. Did you have any role in writing, reviewing or
approving any comments on the following cases?
Answer 44. Please see my answer to Question 46.
Question 45a. Dana Corp & Metaldyne, 351 NLRB 434 (2007)
Answer 45a. The AFL-CIO filed an amicus brief in this case. SEIU
did not file an amicus brief. Please see my answer to Question 21.
Question 45b. Oakwood Healthcare Inc., 348 NLRB 686 (2006)
Answer 45b. The AFL-CIO filed an amicus brief in this case. SEIU
filed an amicus brief in this case. Please see my answer to Question
21.
Question 45c. Oil Capitol Sheet Metal, 349 NLRB 1348 (2007)
Answer 45c. To the best of my knowledge, neither the AFL-CIO nor
SEIU filed an amicus brief in this case. Please see my answer to
Question 21.
Question 45d. Toering Electric Co., 351 NLRB 225 (2007)
Answer 45d. To the best of my knowledge, neither the AFL-CIO nor
SEIU filed an amicus brief in this case. Please see my answer to
Question 21.
Question 45e. Harborside Healthcare, 343 NLRB 906 (2004)
Answer 45e. To the best of my knowledge, neither the AFL-CIO nor
SEIU filed an amicus brief in this case. Please see my answer to
Question 21.
Question 45f. Brown University, 342 NLRB 483 (2004)
Answer 45f. The AFL-CIO filed an amicus brief in this case. SEIU
did not file an amicus brief in this case. Please see my answer to
Question 21.
Question 45g. BE&K Construction Co., 351 NLRB 451 (2007)
Answer 45f. To the best of my knowledge, neither the AFL-CIO nor
SEIU filed an amicus brief in this case. Please see my answer to
Question 21.
Question 46. Do you agree that whether or not they are a party to
the particular case seeking the reversal, the AFL-CIO and the SEIU
International believe they have a substantial interest in seeing the
cases referred to in the above Question 45 reversed?
Answer 46. I do not believe it is appropriate to speculate about
what the beliefs of these organizations will be at some time in the
future concerning hypothetical cases, cases that have not yet been
filed, and cases involving facts of which I am not aware at this time.
If at any time during my service on the Board a case comes before me
relating in any way to SEIU or the AFL-CIO 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. Moreover, in any such case where there is no actual conflict
but my participation might be perceived as creating an appearance of
conflict, I will consult with agency ethics officials and review
applicable rules and precedents to determine whether recusal under the
particular circumstances presented would be appropriate.
Question 47. Do you agree that without regard to the Ethics Pledge
that if you were to participate in a case seeking the reversal of one
of the cases referred to in Question 45 in which the AFL-CIO or the
SEIU International filed an amicus brief or, after the case issued,
took a public position that the case was wrongly decided and/or should
be reversed, that your impartiality as the result of being a former
Associate General Counsel of the SEIU International and AFL-CIO could
reasonably be questioned?
Answer 47. I do not believe my impartiality concerning a particular
case could be reasonably challenged solely because when I was in
private practice I represented a client that took a position on a legal
issue. Whether my impartiality could be reasonably questioned would
depend on the particular facts of the situation. If at any time during
my service on the Board a case comes before me relating in any way to
SEIU or the AFL-CIO 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. Moreover, in
any such case where there is no actual conflict but my participation
might be perceived as creating an appearance of conflict, I will
consult with agency ethics officials and review applicable rules and
precedents to determine whether recusal under the particular
circumstances presented would be appropriate.
Question 48. If your answer to Question 47 is in the affirmative,
will you commit now as a member of the Bar to recuse yourself from
cases seeking the reversal of such precedent. Please answer ``yes'' or
``no''.
Answer 48. My answer to Question 47 was not in the affirmative.
Please see my answer to Question 31.
Question 49. If your answer to Question 47 is in the negative,
please explain how your impartiality would not reasonably be questioned
since you were an Associate General Counsel of both labor organizations
at the time?
Answer 49. My answer to Question 47 was not in the negative. Please
see my answer to Questions 31 and 48.
Question 50. If you are confirmed as a member of the NLRB, when
your term ends do you have plans to return to work for the AFL-CIO and/
or the SEIU International or to work for another labor organization?
Answer 50. I have no such plans.
Question 51. Without regard to Board certification of the results,
do you favor recognition of a union based on card check over the secret
ballot election and, if so, why?
Answer 51. Under the NLRA as currently construed, employees can
choose a representative either through a Board-supervised election or
(with their employer's consent) by otherwise demonstrating that a
majority of employees wish to be represented by the representative.
Both of those procedures have, under appropriate circumstances, been
held to be consistent with the act's protection of employees' free
choice of a representative. However, an employer can generally decline
to recognize a representative chosen by means other than a Board-
supervised election. In addition, only an election can result in Board
certification. The questions of whether the Board should be authorized
to certify a representative based on evidence of majority support other
than the results of an election and whether collective bargaining
representatives should only be chosen in Board-supervised elections are
questions appropriately addressed in Congress. In general, I believe
private, secret ballot elections have been enormously important in
advancing democratic values in a variety of arenas in this country and
around the world. How effective secret ballot elections are in
advancing democratic values depends on the procedures used to conduct
the election, the rules governing the election, and the legal
consequences that attach to its outcome. Because questions concerning
the relative superiority of Board-supervised elections versus
nonelectoral evidence of majority support may arise before the Board, I
do not believe it would be appropriate to address them further in this
context.
Question 52. Do you believe that a card check, with the cards
solicited and collected by the union, is as reliable an indicator of
employee free choice as the secret ballot election?
Answer 52. I believe the answer to that question depends on the
procedures used to conduct the secret ballot election or card check
process, the rules governing each, and the legal consequences that
attach to their outcomes. Because questions concerning whether a secret
ballot election is a superior mechanism to the card check process may
arise before the Board, for example, in the context of a decision
whether to order a rerun election or issue a bargaining order based on
a card showing of majority support, I do not believe it would be
appropriate to address them further in this context.
Question 53. Do you believe that an employer's recognition of a
union based on a card check must be voluntary?
Answer 53. An employer is generally free to decline to recognize a
representative chosen by means other than a Board-supervised election.
The Supreme Court has held, however, that where an employer has engaged
in unfair labor practices ``likely to destroy the union's majority and
seriously impede the election'' the employer may not insist on an
election and can be ordered by the Board to bargain. NLRB v. Gissel
Packing Co., 395 U.S. 575, 600 (1969).
Question 54. If an employer's recognition of a union occurs after a
vigorous corporate campaign conducted by that union which negatively
impacts on the employer's business is that recognition voluntary?
Should it be recognized by the Board?
Answer 54. The term ``corporate campaign'' is not used in the act
or elsewhere in Federal or State law as far as I am aware. The term has
no precise meaning. If the recognition is the result of a violation of
the act, it is subject to challenge before the Board.
Response to Questions of Senator Hatch by Harold Craig Becker
Question 1. The January 20, 2010 issue of The Nation magazine, in
an article entitled ``Obama's pro-union nomination to labor relations
board stalled,'' the authors commented as follows regarding your
ability to enact far-reaching labor law reforms at the NLRB:
``The NLRB even could make it easier for workers to unionize
based on a card check showing of majority support--just as the
EFCA would. It could force employers to recognize a union as
the representative of its employees so long as a neutral third
party verified that more than 50 percent of those employees had
signed a written statement expressing a desire to be
represented by that union. That's a fairer way for workers to
become unionized than the current cumbersome and flawed NLRB
election process, which is often abused by employers who
threaten retaliation against their workers.''
Subsequently, the editors of The Nation clarified that they did not
mean to suggest that you had made such a suggestion in your writings
with reference to card-check recognition. Do you agree with that
original statement?
Answer 1. I do not believe that the Board has authority to
implement the card check provisions of EFCA. As I stated at my
confirmation hearing, in response to a question from Senator Harkin,
the reason the Employee Free Choice Act has been introduced in Congress
and the reason that question is before the Congress and not the Board
is that the current act clearly precludes certification in the absence
of a secret ballot election. Section 9 of the Act, in two distinct
ways, makes clear that Congress has intended that a secret ballot
election be a precondition for certification of the union as a
representative of a unit of employees. First, the act provides
explicitly that the Board shall certify the results of a secret ballot
election. Second, the act provides that employers--should they be
confronted with a demand for recognition based on evidence of majority
support, for example, by signed authorization cards--may petition for a
secret ballot election. So the law is clear that the decision as to
whether an alternative route to certification should be created rests
with Congress, not with the Board.
Question 2. Former NLRB Chairman Bill Gould apparently agrees with
The Nation magazine article. In the July 2009 issue of Workforce
Magazine, in an article entitled ``NLRB decisions could make card check
a reality'' the author states:
``If the card-check provision of the Employee Free Choice Act
fails to survive legislative negotiations, it may not
necessarily die. If the right case comes along, the National
Labor Relations Board could rule that a company must recognize
a union formed through the card-check process.''
When asked, former NLRB Chairman Gould responded: ``in my judgment,
yes, the Board could issue such a ruling.''
Do you agree or disagree with Chairman Gould? That is, do you agree
that as a member of the NLRB, you could vote for a card check system
which would force employers to recognize and bargain with a union,
without a secret ballot election, even without the employer having
committed any unfair labor practices or without having engaged in any
objectionable conduct, just as EFCA would?
Answer 2. I do not believe that the NLRB can order an employer that
had not committed any unfair labor practice or engaged in any
objectionable conduct to recognize and bargain with a union without a
secret ballot election. Please see my answer to Question 1.
Question 3. Would you assure us now that should you be confirmed,
you will not vote, either through rulemaking, decisionmaking, or
administrative interpretation, to force employers to recognize and
bargain with a union based solely on signed cards?
Answer 3. In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the
Supreme Court held that under appropriate circumstances an order that
an employer bargain with a union is a lawful and appropriate remedy for
employer unfair labor practices that prevent the conduct of a fair
election. Since that decision, the Board has issued such orders and
they have routinely been upheld in the Courts of Appeals. If I am
confirmed as a member of the Board and if an argument for categorically
refusing to issue Gissel bargaining orders as you suggest is made to
the Board, I will evaluate the argument with an open mind based on the
terms of the statute and relevant Supreme Court precedent and with due
regard for the principle of stare decisis and the importance of
stability in the law and respect for parties' legitimate reliance on
existing law.
Question 4. You do agree that under the Gissel decision, the Board
has the authority to issue what are known as Gissel Bargaining Orders
to force an employer to recognize a union without an election, or even
without a showing of majority support to remedy an employer's unfair
labor practices?
Answer 4. The Supreme Court stated in Gissel that the Board has
authority to issue bargaining orders directing an employer to bargain
with a union that has not won an election in two situations. Where the
employer has committed ``outrageous'' and ``pervasive'' unfair labor
practices, the Board may issue a bargaining order even if the union had
never demonstrated majority support. Where the unfair labor practices
are less severe but nonetheless tend to undermine majority support and
impede the election process, the Board may also issue a bargaining
order if the union had at one time achieved majority support and the
possibility of erasing the effects of the unlawful conduct and ensuring
a fair election through traditional remedies is slight.
Question 5. Are you in favor of using this existing power more
frequently? In other words, are there cases where you believe a Gissel
Bargaining Order was warranted, but not awarded, such as the Board's
decisions in Abramson (2005), Hialeah Hospital (2004), Register Guard
(2005), Internet Stevensville (2007), and First Legal Support Services
(2004) all of which contained dissents from member--Liebman or member
Walsh?
Answer 5. The appropriateness of the issuance of a Gissel order
depends on the facts of a particular case. I would not form any
conclusion about the appropriateness of such an order without fully
reviewing the record in a particular case and having the benefit of
adversarial presentation of the arguments by all parties.
Question 6. Are you in favor of increasing the Board's use of
extraordinary remedies, such as Gissel Bargaining Orders, even where
the union has never demonstrated majority support among the employees
(so-called ``non-majority bargaining orders'') even based on signed
union authorization cards?
Answer 6. If I am confirmed as a member of the NLRB and if an
argument for a particular remedy is presented to me as a member of the
NLRB in a case where the Board has found that a labor organization or
an employer has engaged in an unfair labor practice, I will consider
the argument with an open mind based on the terms of the act, relevant
Supreme Court precedent, and with due regard for the principle of stare
decisis and the importance of stability in the law and respect for
parties' legitimate reliance on existing law. Because questions
concerning appropriate remedies could arise before the Board, I do not
believe it would be appropriate to address them further in this
context.
Question 7. Do you agree with the statement in The Nation Magazine
article that card check is ``a fairer way for workers to become
unionized''--that is fairer than a secret ballot election? Is a public
card check really fairer than an NLRB-Supervised private ballot, or
secret ballot, election?
Answer 7. Under Federal labor law as currently construed, employees
can choose a representative either through a Board-supervised election
or (if their employer consents) by otherwise demonstrating that a
majority of employees wish to be represented by the representative. I
believe the answer to your question depends on the procedures used to
conduct the secret ballot election or card check process, the rules
governing each, and the legal consequences that attach to their
outcomes. Because questions concerning whether a secret ballot election
is a superior mechanism to a card check process may arise before the
Board, for example, in the context of a decision whether to order a
rerun election or issue a bargaining order based on a card showing of
majority support, I do not believe it would be appropriate to address
them further in this context.
Question 8. The article refers to the current secret ballot
election process as being ``cumbersome and flawed'' and ``often abused
by employers who threaten retaliation against their workers.'' Of
course, democracy sometimes is cumbersome and flawed, as we know from
political elections. Do you believe that the NLRB-Supervised secret
ballot election process--what has been referred to in the past by both
labor and management as the NLRB's crown jewel--is so cumbersome and
flawed that it should be rejected in favor of a union card check
certification process?
Answer 8. As I testified at my confirmation hearing on February 2,
2010, in response to a question from Senator Harkin, the question of
whether the secret ballot election process should be rejected in favor
of or supplemented with a card check certification process rests with
Congress.
Question 9. Is it not just as true that unions threaten workers who
do not agree to vote for the union? And would it not be likely--and
perhaps even more likely--for unions to abuse the card check process by
threatening or coercing workers to sign cards?
Answer 9. Current law bars coercion by unions and employers in
relation to employees' choice of whether to be represented, whether
that choice is being made in a Board-supervised election or by signing
authorization cards. Such threats by employers or unions are grounds
for objections that may result in overturning the results of an
election. Such threats by employers or unions are also grounds for
unfair labor practice charges that may result in an order that an
employer cease recognizing a union. Different procedures for gauging
majority support present different opportunities for such unlawful
coercion by both unions and employers. Whether employees would be
subject to heightened levels of intimidation, threats or coercion if
Congress authorized the Board to certify a representative based on
authorization cards is an empirical question, the answer to which would
depend on the procedures used in the processes and the rules governing
the processes and is a question appropriately addressed by Congress.
Question 10a. In that same Nation Magazine article, the authors
state:
``NLRB nominee Craig Becker has written that in National
Labor Relations Board proceedings related to unionizing, where
a union or workers file for a Board election in order to form
or dissolve a union, there is nothing in the National Labor
Relations Act which compels the NLRB's current policy, which is
to permit the employer to be an active participant either
favoring, opposing or even obstructing such an election.''
I know that the editors have clarified that you did not write those
views in exactly those terms. But do you agree with the statement that
there's nothing to compel the Board's current policy?
If yes, then you agree that you would have the power as a member of
the NLRB to vote to exclude employers from being an active participant
in the representation election process?
Answer 10a. As I stated at my confirmation hearing, in answer to a
question from Senator lsakson, the current law clearly protects
employers' ability to express their views on the question of whether
their employees should vote to be represented by a labor organization--
not only the National Labor Relations Act, but the first amendment to
the U.S. Constitution. It is clear that employers have legitimate
interests and have an indisputable right to express their views on that
question.
Question 10b. If no, then did you not advocate in the 1993
Minnesota Law Review that: ``Employers should have no legally
sanctioned role in union elections'' and also that ``Employers should
be stripped of any legally cognizable interest in their employees'
election of representatives?''
Answer 10b. In my 1993 Minnesota Law Review article, I suggested
that employees should be afforded party status in proceedings
concerning whether or not they should be represented and that employers
could protect their legally protected interests in a subsequent unfair
labor practice proceeding. I did not suggest that employers should be
barred from freely communicating their views on union representation.
The suggestions in my 1993 Minnesota Law Review article were made as a
scholar seeking to further meaningful and wide-ranging analysis of the
law. The suggestions I made in a scholarly article published in 1993
will not control my judgment on these questions if I am confirmed as a
member of the NLRB. I have no personal views that would prevent me from
approaching this issue as a Board member with an open mind and without
prejudgment, consistent with my responsibilities to administer the law
fairly and impartially.
Question 11. In your 1993 Minnesota law review article you
advocated in favor of ``Altering the nature of the choice presented to
workers in union elections. And that such a reform would mandate
employee representation, and the question posed on the ballot would
simply be which representative.'' Your response to my previous written
question on this point was, I have to say, rather weak. You responded
that in the article you ``did not suggest that your argument should be
accepted,'' but you do not deny that it was your view. Do you really
believe that employees' options should be limited to ``which
representative'' and that employees should, in that way, be mandated to
join a union?
Answer 11. That was not my view. In my 1993 Minnesota Law Review
article, I described this as an argument that could be made. I did not
suggest that argument should be accepted. In fact, I suggested the
opposite. I also stated in my 1993 article that such a change would
``require fundamental statutory revisions.'' 77 Minn.L.Rev. at 584.
Only Congress could mandate employee representation.
Question 12. At another point in your written advocacy you state
that employers should be bound by their own restrictions on
solicitation, distribution, and access rules that they apply to
outsiders and other strangers to the workplace. In response to my
previous written question on this point, you confirmed that is your
view, but that you wrote that as a ``scholar'' and that you have no
personal views that would prevent you from being open-minded.
Does that not mean that, in your view, in spite of the free speech
provisions of section 8(c) of the Act, employers should be prohibited
from solicitation, distribution, and access to their own employees on
the employer's own property, to communicate about union organizing,
just as they prohibit outsiders and strangers from doing?
Answer 12. In my 1993 Minnesota Law Review article, I did not
suggest that employers should be prevented from speaking to their
employees at work without offering a labor organization the same
opportunity. Moreover, the suggestions in my 1993 Minnesota Law Review
article were made as a scholar seeking to further meaningful and wide-
ranging analysis of the law. The suggestions I made in a scholarly
article published in 1993 will not control my judgment on these
questions if I am confirmed as a member of the NLRB. I have no personal
views that would prevent me from approaching this issue as a Board
member with an open mind and without prejudgment, consistent with my
responsibilities to administer the law fairly and impartially. If I am
confirmed as a member of the NLRB and an argument that the Board should
somehow alter its solicitation, distribution or access rules in some
manner is made to the Board, I will consider it with an open mind based
on the terms of the act, the first amendment, and relevant Supreme
Court precedents. Because questions concerning these issues could arise
before the Board, I do not believe it would be appropriate to address
them further in this context.
Question 13. You also wrote in the Minnesota law review that
defining employer requirements that employees listen to speeches
opposing or supporting unionization as being ``objectionable conduct''
sufficient to overturn the results of a representation election, would
be consistent with section 8(c) of the act--the ``free speech''
provision. Apparently, in your view, it would be objectionable even
absent ``threats, coercion, or promises of benefit.'' Simply requiring
employees to listen--whether or not they agree with what is being--said
would be objectionable conduct. Is it your position, therefore, that--
employers should be prevented from mandatory workplace meetings with
employees at work? What about such meetings elsewhere?
Answer 13. In my 1993 Minnesota Law Review article, I described the
adoption of section 8(c) and stated that it prevents the Board from
considering employer speech ``evidence of an unfair labor practice''
absent a threat or promise of benefit. I did not suggest that it would
be consistent with section 8(c) to prevent an employer from expressing
its views. I suggested only that defining employer requirements,
undergirded by an express or implied threat of discipline, that
employees listen to speech opposing or supporting unionization as
objectionable conduct would be consistent with section 8(c). The
suggestion in my 1993 Minnesota Law Review article was made as a
scholar seeking to further meaningful and wide-ranging analysis of the
law. The suggestions I made in a scholarly article published in 1993
will not control my judgment on these questions if I am confirmed as a
member of the NLRB. I have no personal views that would prevent me from
approaching this issue as a Board member with an open mind and without
prejudgment, consistent with my responsibilities to administer the law
fairly and impartially. If I am confirmed as a member of the NLRB and
if any such argument is made to the Board, I will consider it with an
open mind based on the terms of the act, the first amendment, and
relevant Supreme Court precedents. Because questions concerning the
scope of protection afforded by section 8(c) could arise before the
Board, I do not believe it would be appropriate to address them further
in this context.
Question 14. You also have advocated in an article entitled
``Better Than a Strike: Protecting New Forms of Collective Work
Stoppages Under the National Labor Relations Act'' that repeated,
short-term grievance strikes should replace the prohibited
``intermittent'' or ``partial'' strikes. In your opinion, is that what
we need in this country--more strikes and short-term disruptions,
especially in this economy? Isn't one of the purposes of the National
Labor Relations Act to prevent obstructions to interstate commerce?
Answer 14. It is the declared policy of Federal labor law to
``promote the full flow of commerce'' and to ``eliminate the causes of
certain substantial obstructions to the free flow of commerce.'' My
1994 Chicago Law Review article suggested that short strikes over
specific grievances are less disruptive of production than open-ended
strikes and would lead to greater labor-management cooperation than
open-ended strikes. The article did not suggest that any existing
precedent should be overruled. The article suggested that existing law
should be applied to such strikes. The suggestions in my 1994
University of Chicago Law Review article were made as a scholar seeking
to further meaningful and wide-ranging analysis of the law. The article
explained that the suggestions were consistent with the act, then
existing Board and court precedent, and then existing Board General
Counsel Memoranda. I am not currently aware of any subsequent Board or
court holdings rejecting the narrow suggestions advanced in my article.
The statements in the article will not control my judgment on these
questions if I am confirmed as a member of the NLRB. I have no personal
views that would prevent me from approaching this issue as a Board
member with an open mind and without prejudgment, consistent with my
responsibilities to administer the law fairly and impartially. If I am
confirmed as a member of the NLRB and if any argument concerning
strikes is made to the Board, I will consider it with an open mind
based on the terms of the act and relevant Supreme Court precedents.
Because questions concerning these issues could arise before the Board,
I do not believe it would be appropriate to address them further in
this context.
Question 15. What are your views on expanded rulemaking? What types
of representation issues should be considered? And I ask you to respond
not as a candidate for the NLRB as to what you may or may not do if
confirmed, but as a long-time union lawyer.
Answer 15. The act vests in the Board authority to adopt rules and
regulations ``as may be necessary to carry out the provisions of '' the
act. The Board has promulgated rules governing procedures in unfair
labor practice, representation, and other types of cases. I would cite
the Board's rulemaking procedures in 1989 establishing presumptively
appropriate units in acute care hospitals, see 29 CFR 101.30, approved
by the Supreme Court in American Hospital Association v. NLRB, 499 U.S.
606 (1991), as an example of the types of circumstances where
rulemaking is appropriate.
Would this not be a way to inject your views on representation
elections, as expressed in your articles, even without having to wait
for a case to decide, and possibly be reversed in a Federal court of
appeals?
Answer 15. No.
Question 16. Have you had conversations with Chairman Liebman
concerning NLRB rulemaking?
Answer 16. No.
Question 17. Have you had conversations with any of your colleagues
at the SEIU or the AFL-CIO, or anyone else, about NLRB rulemaking? What
rules have they advocated with regard to the representation process?
Answer 17. Over the course of my 28 years in the practice of labor
law, I may have had conversations with colleagues and other labor
lawyers, professors, and students about rulemaking. I do not recall
discussing any specific proposals. At no time have I discussed with any
person any action I would or would not take as a member of the Board
regarding rulemaking or any other matter.
Question 18. You are a very strong and effective advocate for the
interests of the SEIU and the AFL-CIO, and have been throughout your
legal career. When you drafted president Obama's executive order on
employees rights under labor laws while still employed by the SEIU and
AFL-CIO [on paid vacation] were you not, in effect, acting as an
advocate for their interests? And, isn't that the type of conflict that
president Obama sought to avoid?
Answer 18. I have not represented the SEIU or the AFL-CIO
throughout my legal career. I have represented many other clients and I
have also taught at three different law schools. I served as a
volunteer member of the Presidential Transition Team while using
vacation leave from my employment. I was asked to provide advice and
information concerning possible executive orders consistent with
policies that the President had publicly announced during the campaign.
While serving on the Presidential Transition Team, I spoke and acted
solely for myself. I did not have any policymaking role. I abided by
the Transition Team's ethics rules and there was no conflict of
interest.
Question 19. The recently proposed notice from the Department of
Labor required by the Executive order to be posted in the worksites of
all Federal contractors and subcontractors was inaccurate, and in most
cases simply incomplete or incorrect interpretations of employees'
rights to organize, bargain collectively, and engage in other forms of
concerted activity under the National Labor Relations Act. In fact, if
workers followed the advice on the proposed notice, they may find
themselves subject to lawful discipline under current board law. It has
been widely discussed that the NLRB also may be considering requiring a
notice to be posted in all workplaces covered by the National Labor
Relations Act--not just the workplaces of Federal contractors--
concerning the rights of employees under the act. I would have to
believe that the NLRB would do a better job of it than the Department
of Labor, so what happens when the two posters conflict?
Answer 19. The NLRB has primary jurisdiction to enforce and
administer the National Labor Relations Act. While I do not know what
incomplete or incorrect interpretations the question refers to, no
statement in the Department of Labor's notice would be binding on the
NLRB.
Question 20. Do you think that advice in the form of written
materials drafted by union and management lawyers and provided by union
and management lawyers to their clients regarding employees' decisions
to exercise or not exercise the right to organize and bargain
collectively, should be subject to broader financial reporting
requirements under the Labor-Management Reporting and Disclosure Act
(LMRDA)?
Answer 20. The National Labor Relations Board does not enforce or
administer the Labor-Management Reporting and Disclosure Act. This
question is appropriately addressed by Congress and the Department of
Labor.
Question 21. Don't unions, union lawyers, and union consultants try
to persuade employees (which is their right), just as it is the
employer's free speech right under the caveats of section 8(c) of the
LMRDA? Shouldn't both unions and union lawyers therefore be subject to
the same rules as employers and management lawyers?
Answer 21. The National Labor Relations Board does not enforce or
administer the Labor-Management Reporting and Disclosure Act. The
provision of the LMRDA to which you refer, 29 U.S.C. 433(b), currently
refers only to persons who ``pursuant to any agreement or arrangement
with an employer'' undertake specified activities. This question is,
therefore, appropriately addressed by Congress.
Question 22. If confirmed, how long do you intend to recuse
yourself from matters involving your current employers?
Answer 22. Pursuant to 5 CFR 2635.502, for a period of 1 year after
I last provided services to a former employer, I will not participate
in any particular matter involving specific parties in which the former
employer is or represents a party, unless I am first authorized to
participate, pursuant to 5 CFR 2635.502(d). In addition, I understand
that as an appointee I am required to sign the Ethics Pledge under
Executive Order No. 13490 and that I will be bound by the requirements
and restrictions therein in addition to the requirements of 5 CFR
2635.502. Accordingly, I will not for a period of 2 years from the date
of my appointment participate in any particular matter involving
specific parties that is directly and substantially related to a former
employer as those terms are defined in Executive Order No. 13490,
unless I am first authorized to participate, pursuant to Executive
Order No. 13490 Sec. 3. 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 a former employer 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. Finally, in any such case where there is no actual
conflict but my participation might be perceived as creating an
appearance of conflict, I will consult with agency ethics officials and
review applicable rules and precedents to determine whether recusal
under the particular circumstances presented would be appropriate.
Question 23. Are you covered by President Obama's Executive Order
12490?
Answer 23. If I am confirmed, I will be covered by the Executive
Order 13490, Ethics Commitments by Executive Branch Personnel (January
21, 2009). Please see my answer to Question 22.
Question 24. If some exception applies, do you believe it is
appropriate that different standards should apply to NLRB members as
apply to Executive Branch nominees?
Answer 24. The Executive Order does not expressly create different
standards for NLRB members than apply to other executive branch
nominees. Any further views I might form on this question would depend
on the nature of the executive branch official's job duties and
decisionmaking authority and his or her relation to the particular
circumstances presented.
Question 25. Will you recuse yourself only from those cases where
the SEIU or the AFL-CIO are a party, or also those cases in which they
have an interest (such as an amici)? What about cases that the SEIU or
AFL-CIO has taken a formal position in, though may not have
participated formally in the case?
Answer 25. Please see my answer to Question 22.
Question 26. 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?
Answer 26. In the course of my work for SEIU, I have represented a
small number of local unions affiliated with SEIU. Pursuant to 5 CFR
2635.502, for a period of 1 year after I last provided services to a
former client, including any such locals, I will not participate in any
particular matter involving specific parties in which a former client
is or represents a party, unless I am first authorized to participate,
pursuant to 5 CFR 2635.502(d). In addition, I understand that as an
appointee I am required to sign the Ethics Pledge under Executive Order
No. 13490 and that I will be bound by the requirements and restrictions
therein in addition to the requirements of 5 CFR 2635.502. Accordingly,
I will not for a period of 2 years from the date of my appointment
participate in any particular matter involving specific parties that is
directly and substantially related to a former client as those terms
are defined in Executive Order No. 13490, including any such locals,
unless I am first authorized to participate, pursuant to Executive
Order No. 13490 Sec. 3. 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. Finally, in any such case
where there is no actual conflict but my participation might be
perceived as creating an appearance of conflict, I will consult with
agency ethics officials and review applicable rules and precedents to
determine whether recusal under the particular circumstances presented
would be appropriate.
Question 27. The SEIU, the AFL-CIO or their locals are often
parties in cases before the NLRB, correct?
Answer 27. The SEIU and the AFL-CIO are rarely parties to cases
before the NLRB. Only four local labor organizations are directly
affiliated with the AFL-CIO and they are rarely parties to cases before
the NLRB. Local labor organizations affiliated with SEIU are, on
occasion, parties to cases before the NLRB.
Question 28. In how many cases are the SEIU or AFL-CIO currently a
party?
Answer 28. I am not aware of any cases currently pending before the
Board in which either the SEIU or the AFL-CIO is a party.
Question 29a. Isn't the SEIU involved and likely to become involved
in quite a few cases before the Board involving its dispute with the
National Union of Healthcare Workers?
Answer 29a. I have had no involvement in the dispute between SEIU
and the National Union of Healthcare Workers and I am not in a position
to know or predict what cases, if any, related to that dispute may come
before the Board in the future.
Question 29b. Have you provided legal advice to the SEIU on that
dispute in any way?
Answer 29b. No.
Question 30. Have you participated in any cases currently pending
before the Board? If so, how many and in what capacity? Can you provide
a list?
Answer 30. Yes, as follows: Dana Co., No. 7-CA-46965, as counsel to
amicus curiae; Hacienda Resort Hotel & Casino, No. 28-CA-13274, as
counsel to amicus curiae; Correctional Medical, 349 NLRB 1198 (2007),
as counsel to petitioner in Court of Appeals; Tribune Publishing, 351
NLRB 196 (2007) (may remain pending after petition for review denied
for purposes of compliance), as counsel to putative intervenor in Court
of Appeals; Guardsmark, LLC, 344 NLRB 809 (may remain pending after
petition for review granted by Court of Appeals), as counsel to
petitioner in Court of Appeals; Randell Warehouse of Ariz., Inc., 328
NLRB 1034 (many remain pending after petition for review granted by
Court of Appeals), as counsel to intervenor in Court of Appeals.
Question 31. The SEIU and the AFL-CIO have publically advocated the
reversal of certain Board precedent, correct? Which precedents?
Answer 31. I do not know whether the SEIU or the AFL-CIO have
publicly advocated reversal of specific Board precedents outside the
context of advocacy in a specific, pending case. It is likely, however,
that both organizations have publically criticized Board decisions over
the course of the past 75 years.
Question 32. Do you intend to recuse yourself from that case and
other cases in which the SEIU or AFL-CIO have taken a public position?
Answer 32. I do not believe my impartiality concerning a particular
case could reasonably be questioned solely because when I was in
private practice I represented a client that took a position on a legal
issue. However, please see my answer to Question 22. Beyond that, I do
not believe it is appropriate to opine on hypothetical cases, on cases
that have not yet been filed, or on cases involving facts of which I am
not aware at this time.
Question 33a. Have you taken the Administration's ``Ethic's
Commitments by Executive Branch Personnel?''
Answer 33. If confirmed, I will take the President's Ethics Pledge
upon confirmation. Please see my answer below.
Question 33b. If not, do you intend to?
Answer 33b. Yes. I have entered into an ethics agreement with the
NLRB that provides,
``I understand that as an appointee I am required to sign the
Ethics Pledge (Executive Order No. 13490) and that I will be
bound by the requirements and restrictions therein in addition
to the commitments I have made in this and any other ethics
agreement.''
Question 34. That pledge at paragraph 2 requires that an appointee
recuse himself or herself for 2 years from any particular matter
involving specific parties in which a former employer or client is or
represents a party, if the appointee served that employer or client
during the 2 years prior to the appointment. Specifically it reads:
``I will not for a period of 2 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 or former clients, including regulations and
contracts.''
Do you intend to comply with paragraph 2?
Answer 34. I intend to comply with the entire pledge.
Question 35. Does that mean that you will recuse yourself not only
from all cases that you have participated in any way while working for
the SEIU and AFL-CIO but also from all cases raising issues that the
SEIU or AFL-CIO have taken a public position?
Answer 35. Please see my answers to Questions 22 and 32.
Question 36. Do you intend to seek a waiver from the Director of
OMB [permitted in Paragraph 3]?
Answer 36. No.
Question 37. Are you familiar with 5 CFR Section 2635.502? This
provides that an employee is required to consider whether the
employee's impartiality would reasonably be questioned if the employee
were to participate in a particular matter involving specific parties
where persons with certain personal or business relationship with the
employee are involved. If the employee determines that a reasonable
person would question the employee's impartiality, or if the agency
determines that there is an appearance concern, then the employee
should not participate in the matter unless he or she has informed the
agency designee of the appearance and received authorization from the
agency.
Answer 37. Yes, I am familiar with 5 CFR Section 2635.502 which
provides:
``Where an employee knows that a particular mailer involving
specific parties is likely to have a direct and predictable
effect on the financial interest of a member of his household,
or knows that a person with whom he has a covered relationship
is or represents a party to such matter, and where the employee
determines that the circumstances would cause a reasonable
person with knowledge of the relevant facts to question his
impartiality in the matter, the employee should not participate
in the matter unless he has informed the agency designee of the
appearance problem and received authorization from the agency
designee in accordance with paragraph (d) of this section.''
Question 38. Apart from the Executive order, don't you believe that
if you participated in decisions raising issues on which the AFL-CIO or
the SEIU have taken a public position while you were employed by them
that your impartiality would reasonably be questioned?
Answer 38. Please see my answers to Questions 22 and 32.
Response to Questions of Senator Coburn, M.D. by Harold Craig Becker
Question 1. In November 2009, the National Mediation Board issued a
proposed rule in which it relied on the ``broad discretion'' that the
majority opinion believed was provided to it under the Railway Labor
Act. Outrageously, this proposed rule threatens to overturn 75 years of
standing labor policy (Federal Register/Vol. 74, No. 211/Tuesday,
November 3, 2009/Docket No. C-6964). Under the proposed rule, a union
could be certified through a simple majority of the employees who vote.
Do you think the National Mediation Board has the authority under
current law to reverse the current, long-standing rule on its
Representation Election Procedure?
Answer 1. The National Mediation Board administers the Railway
Labor Act. The National Labor Relations Board (NLRB) administers the
National Labor Relations Act (NLRA). I have never appeared before the
National Mediation Board and have not practiced under the Railway Labor
Act. I cannot at this time offer an informed opinion about this
question.
Question 2. Do you think the National Mediation Board's proposed
rule is in keeping with precedent?
Answer 2. As I understand the National Mediation Board's proposal
based on reading the notice of proposed rulemaking, the proposal is to
revise an existing rule.
Question 3. Do you think the majority of the National Mediation
Board, in proposing this rule, fulfilled its duty under the
Administrative Procedures Act to explain adequately its departure from
agency precedent?
Answer 3. Please see my answer to Question 1.
Question 4. Do you think the NLRB has broad discretion under the
law to make changes to election procedures through administrative
means?
Answer 4. Section 9 of the Act sets forth certain standards for the
conduct of elections that the Board must honor. For example, section 9
specifies preconditions for the conduct of an election and bars an
election in a unit in which an election has been conducted in the prior
12 months. The Board cannot depart from the standards established in
section 9. Consistent with those statutory standards, the Supreme Court
has held that the Board has broad discretion concerning the conduct and
regulation of elections.
Question 5. In questions for the record submitted to you on July
30, 2009, Senator Michael Enzi, Ranking Member of the Senate Committee
on Health, Education, Labor, and Pensions, asked you the following
question: ``In your opinion, what changes could be made under current
law to improve the union certification process?'' You replied that,
``The Act vests broad discretion in the Board to conduct and
regulate representation elections and certify the results.
Subject to the constraints of the principle of stare decisis
discussed in my answer to Question 4 and the requirements of
the Administrative Procedures Act, where applicable, the Board
could make changes in election procedures and rules fit
determined after appropriate deliberation that they were
consistent with Congress' intent and would improve the
process'' (emphasis added).
Please explain more fully your comment that the act vests broad
discretion in the Board to conduct and regulate representation
elections and certify results.
Answer 5. I was referring to decisions of the Supreme Court which
have so held. See, for example, NLRB v. Waterman S.S. Co., 309 U.S.
206, 226 (1940) (``The control of the election proceeding, and the
determination of the steps necessary to conduct that election fairly
were matters which Congress entrusted to the Board alone.''); NLRB v.
A.J. Tower Co., 329 U.S. 324, 330 (1946) (``Congress has entrusted the
Board with a wide degree of discretion in establishing the procedure
and safeguards necessary to insure the fair and free choice of
bargaining representatives by employees.''); and NLRB v. Wyman-Gordon
Co., 394 U.S. 759, 767 (1969) (``Congress granted the Board a wide
discretion to ensure the fair and free choice of bargaining
representatives.'')
Question 6. What types of changes in election procedures and rules
could be made under the current broad discretion available under law
that you mention? What changes could be made under current law to
improve the union certification process? What changes could be made
under current law to improve the decertification process?
Answer 6. In the past, the Board has changed the election
procedures and rules in a number of respects. For example, in Hollywood
Ceramics Co., 140 N.L.R.B. 221 (1962), the Board held that
misrepresentations by a union or employer during an election campaign
were grounds for overturning the election results. Later, in Midland
Nat'l Life Ins. Co., 263 N.L.R.B. 127 (1982), the Board overruled its
prior decision and held that it would no longer regulate the content of
campaign propaganda in that manner. Examples of more recent cases in
which the Board has changed its election-related rules include Kalin
Construction Co., 321 N.L.R.B. 649 (1996), holding that an employer's
changes to its paycheck process during the period beginning 24 hours
before the opening of the polls and ending with the closing of the
polls is objectionable; and Fessler & Bowman, Inc., 341 N.L.R.B. 932
(2004), holding that when either union or employer agents collect or
otherwise handle voters' mail ballots it is grounds for objection. All
of these changes, as well as the prior rules they overturned, applied
to decertification elections as well as certification elections.
Question 7. What role does precedent play limiting interpretation
of the law? Are the Board's prior decisions controlling for future
cases? What standard would you apply in determining whether to overrule
a prior Board decision?
Answer 7. I think the NLRB, like other adjudicatory agencies,
should respect its own precedent and the rule of stare decisis. I think
the Board should respect parties' legitimate reliance on past precedent
to guide their actions. I think that the Board should not depart from
its own precedent without citing that precedent and openly
acknowledging that it is overruling past precedent. I think that when
the Board decides to overrule prior precedent it should do so expressly
and only after fully explaining the basis of its decision.
Question 8. During the February 2, 2010 hearing before the HELP
Committee, comments were made that those with concerns about your
nomination are opposing you solely on the basis of your having
represented labor interests. Your past writings, however, provide
ground for concern. These concerns are heightened by recent actions of
the National Mediation Board in which precedent was seemingly dumped in
favor of the personal agenda of recent Board appointees. In testimony
before the HELP Committee on February 2, 2010, you responded to
questions on your controversial remarks in the Minnesota Law Review,
stating at the hearing that: ``If confirmed, my decisions, unlike the
views of a scholar, will have practical, concrete and important
consequences. I will have a duty to implement the intent of Congress.''
Please explain this comment more fully. If confirmed, how would
your analysis of labor law and precedent differ as a practitioner
studying the body of law, as opposed to a scholar studying that same
body of law? As a practitioner, would you reach the conclusion reached
in your 1993 Minnesota Law Review article that ``employers should be
stripped of any legally cognizable interest in their employees'
election of representatives?'' What restraints would factor into your
analysis as a practitioner that do not factor into your analysis as a
scholar?
Answer 8. A scholar does not take an oath and has no duty to uphold
and fairly enforce the law. Scholars can and often do advocate for
changes in existing law. Scholars do not have the benefit of or a duty
to consider a full and fair presentation of arguments by both sides as
takes place in adjudication. Scholars do not have the benefit of
collaborative deliberation of the type I will engage in with my fellow
Board members should I be confirmed. Only after full and fair
procedures, consideration of all arguments appropriately expressed to
the Board, and on the basis of specific facts would I reach any
conclusions concerning questions that might come before the Board.
Question 9. As a member of the NLRB, would you consult and factor
into your decisionmaking any scholarly or academic work related to the
topic you are considering?
Answer 9. If I am confirmed as a member of the NLRB, I will be
bound by the law as enacted by Congress. I will also fully respect and
apply any applicable precedents of the Supreme Court. I will also
respect the prior precedents of the Board itself, consistent with the
principle of stare decisis. I would review scholarly and academic work
cited by parties to Board proceedings or otherwise brought to my
attention. They would, of course, be given no controlling weight of any
sort.
Question 10. How do you plan to work with all members of the Board
to ensure that decisions reached are in full keeping with the law and
precedent?
Answer 10. I hope to engage in a collaborative decisionmaking
process with my fellow Board members, should I be confirmed. Just as
the adversarial process helps to insure that all arguments about what
the law requires or what prior precedent provides are fully aired and
considered, I believe that a collaborative process in which any
disagreements are fully discussed and considered will result in
decisions that are faithful to the law and respect prior precedent.
The NLRB has rarely exercised its rulemaking capacity, relying
instead on case-by-case decisionmaking.
Question 11. What conditions do you believe are necessary for the
NLRB to initiate the rulemaking process?
Answer 11. The NLRB may initiate the rulemaking process only in a
manner consistent with its statutory rulemaking authority, with the
Administrative Procedure Act, and with any other applicable laws. The
NLRB should have a sound policy basis for a decision to proceed through
rulemaking.
Question 12. What types of issues should be the subject of
rulemaking?
Answer 12. I would cite the Board's rulemaking proceedings in 1989
establishing presumptively appropriate units in acute care hospitals,
see 29 CFR 101.30, approved by the Supreme Court in American Hospital
Association v. NLRB, 499 U.S. 606 (1991), as an example of the types of
circumstances where rulemaking is appropriate.
Question 13. Do you think the Board should break from tradition and
begin utilizing the rulemaking process?
Answer 13. The Board has promulgated rules governing procedures in
unfair labor practice, representation, and other types of cases. As I
indicated above, I would cite the Board's rulemaking proceedings in
1989 establishing presumptively appropriate units in acute care
hospitals, see 29 CFR 101.30, approved by the Supreme Court in American
Hospital Association v. NLRB, 499 U.S. 606 (1991), as an example of the
types of circumstances where rulemaking is appropriate.
Question 14. Do you believe it is necessary to have the full
participation of all Board members in the rulemaking process, including
the drafting of all documents related to that process before decisions
are issued? Do you think minority views need to be consulted and their
views carefully considered before significant regulatory decisions are
made?
Answer 14. When it engages in rulemaking, the Board must act in
full compliance with its statutory rulemaking authority, the
Administrative Procedure Act, and any other statutory requirements. If
I am confirmed and a proposal for rulemaking were to come before the
Board, I would fully familiarize myself with those statutory
requirements and act in full compliance with those statutory commands.
I believe all Board members have a statutory right and obligation to
participate in any rulemaking process. Of course, full and adequate
consultation among Board members will better insure that all relevant
considerations are raised. If there is disagreement among members, the
majority should fully consider the views of the minority before acting
and the minority should fully consider the views of the majority before
acting.
Question 15. What benefits do you believe the NLRB could gain
through rulemaking that exceed the Board's traditional reliance on
adjudication?
Answer 15. As I stated in my prior answer, I would cite the Board's
rulemaking proceedings in 1989 establishing presumptively appropriate
units in acute care hospitals, see 29 CFR 101.30, approved by the
Supreme Court in American Hospital Association v. NLRB, 499 U.S. 606
(1991), as an example of the types of circumstances where the Board has
achieved benefits in the areas of stability and greater predictability
for employers, employees and labor organizations that it had not been
able to obtain through adjudication.
Question 16. What role should law and Supreme Court precedent have
in rulemaking?
Answer 16. The NLRB may initiate the rulemaking process only in a
manner consistent with its statutory rulemaking authority, with the
Administrative Procedure Act (APA), and with any other applicable laws.
Of course, any rules must be consistent with Federal labor law itself.
The Supreme Court's decisions under the APA, Federal labor law, and any
other applicable law are binding on the Board in rulemaking as in
adjudication.
Question 17. In 2007, you represented the plaintiff in Long Island
Care at Home v. Coke before the Supreme Court. You were unsuccessful in
arguing that the Court should overturn a Labor Department regulation
that exempted home-care aides employed by third-party companies from
the Federal minimum wage and overtime coverage under the Fair Labor
Standards Act. Following the Supreme Court's decision, you testified
before the House Education and Workforce Committee where you stated
that DOL's adopted regulations `` . . . radically broadened the
companionship exemption in a manner inconsistent with both Congress'
intent and the DOL's treatment of babysitters.''
If the NLRB were to undertake rulemaking, how would you handle
instances where your personal interpretation of congressional intent
and current regulation is in direct conflict with Supreme Court
precedent?
Answer 17. I would act in accordance with congressional intent and
Supreme Court precedent.
The Daily Labor Report recently reported \1\ that organized labor
is increasingly turning to ``corporate campaigns'' that attack a
company's reputation as a way to achieve union goals.
---------------------------------------------------------------------------
\1\ Daily Labor Report, ``Management Attorneys Say Unions
Increasingly Using Corporate Campaigns,'' By: Janet Cecelia Walthall,
1-19-10.
Question 18. Do you think the law should be amended to specifically
define a corporate campaign?
Answer 18. I believe that question is properly addressed by
Congress.
Question 19. Have you ever participated in a corporate campaign?
Answer 19. The term ``corporate campaign'' is not used in the
National Labor Relations Act, as amended, or in any other Federal or
State law that I am aware of. It has no precise definition. As counsel
to various labor organizations, I have provided advice concerning
efforts to assist employees to organize and obtain representation and
efforts to reach agreement in collective bargaining.
Question 20. Have you ever, through your work at the SEIU or AFL-
CIO given counsel on how to organize and/or implement a corporate
campaign?
Answer 20. Please see my answer to your Question 19.
Question 21. Do you think there should be any restrictions on anti-
employer corporate campaigns?
Answer 21. As stated above, the term ``corporate campaign'' is not
used in the act or elsewhere in Federal or State law as far as I am
aware. The term has no precise meaning. Various restrictions contained
in Federal labor law might apply to activity engaged in during what is
sometimes referred to as a corporate campaign, including the
restrictions created by section 8(b)(4). Whether additional
restrictions of some sort should be imposed is a question appropriately
addressed by Congress.
Question 22a. Do you think penalties for union misconduct should be
increased?
Answer 22a. As I have stated in answers relating to the Board's
authority to implement the provisions of the Employee Free Choice Act
without congressional action, Congress has vested the Board with
specific remedial authority in section 10 of the Act. The NLRB has
authority to fashion new remedies consistent with section 10 and
relevant Supreme Court precedent. Outside those bounds, use of new
remedies must be authorized by Congress. Section 10(c) vests in the
Board authority to order a party to take affirmative action, including
re-instatement with or without back pay. I do not believe that section
10 currently vests in the Board authority to impose penalties. Thus,
this question is one for Congress to resolve.
Question 22b. As you know private union membership has steadily
declined over the years and is currently at record lows. Do you think
the NLRB has the responsibility under law to increase union
participation?
Answer 22b. No.
Question 23. In a February 9, 2008 letter to Andy Stern, Sal
Roselli, President of the SEIU United Health Care Workers West, wrote
that:
``An overly zealous focus on growth--growth at any cost,
apparently--has eclipsed SEIU's commitment to its members. As
labor leaders, we are obligated to place the needs of our
members first and to uphold democratic principles not only in
the workplace, but also in our union. That is increasingly
being blocked, circumvented and manipulated.''
How do you assure members of Congress that the win-at-all-costs
culture noted by Mr. Roselli as permeating your current place of
employment will not carry over into your work at the NLRB, or impair or
limit your judgment as a member of the NLRB?
Answer 23. I have had no involvement in the dispute between SEIU
and Mr. Roselli and the organization with which he is currently
affiliated. If confirmed, I will apply the law as written fairly and
even-handedly.
Question 24. Do you believe that the rights of SEIU United Health
Care Workers West members were blocked, circumvented or manipulated in
any way?
Answer 24. As stated above, I have had no involvement in the
dispute between SEIU and Mr. Roselli and the organization with which he
is currently affiliated.
Question 25a. Mr. Roselli also noted that:
``You [Stern] and other international officers interfered in
the affairs of the SEIU California State Council--our
collective vehicle for State legislation and electoral action--
using the imposition of a revised constitution and bylaws to
prompt a presidential election when none was anticipated, then
manipulating the per capita voting formula and procedures in
order to produce the outcomes you desired.''
Did you provide counsel to the SEIU concerning the affairs of the
SEIU California State Council, or the implementation of a revised
constitution and bylaws? Please explain.
Answer 25a. No.
Question 25b. In testimony given before the Senate Committee on
Health, Education, Labor, and Pensions on February 2, 2010, you
mentioned letters of support that were issued by management teams you
have worked with in the past while representing the interests of labor.
I regret that I have not been able to see a copy of the support letters
you mentioned. A published hearing record will not be available so that
I can access such letters prior to the vote on your confirmation due to
the expedited nature of your hearing this second session of the 111th
Congress. Please include in your written response copies of all letters
you are aware of in support of your nomination.
Answer 25b. Copies of all letters of support within my possession
are attached.
Question 26. In testimony before the HELP Committee on February 2,
2010, you clearly stated in response to a question to Chairman Tom
Harkin that you will recuse yourself from all cases involving the SEIU.
In testimony, you said this would apply to the first 2-year period
following your resignation from the SEIU. However, in the questionnaire
you submitted to the committee you said you would recuse yourself for a
1-year period.
For how long a period will you recuse yourself from cases involving
the SEIU?
Answer 26. Two years, as I explain below. My answers to the HELP
Committee questionnaire stated that I would abide by both the terms of
the Code of Federal Regulations which require recusal for a period of 1
year and the terms of the President's Executive Order which require
recusal for a period of 2 years. Accordingly, pursuant to 5 CFR
2635.502, for a period of 1 year after I last provided services to a
former client, including SEIU, I will not participate in any particular
matter involving specific parties in which a former client is or
represents a party, unless I am first authorized to participate,
pursuant to 5 CFR 2635.502(d). In addition, I understand that as an
appointee I am required to sign the Ethics Pledge under Executive Order
No. 13490 and that I will be bound by the requirements and restrictions
therein in addition to the requirements of 5 CFR 2635.502. Accordingly,
I will not for a period of 2 years from the date of my appointment
participate in any particular matter involving specific parties that is
directly and substantially related to a former client as those terms
are defined in Executive Order No. 13490, including SEIU, unless I am
first authorized to participate, pursuant to Executive Order No. 13490
Sec. 3. 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 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. Finally, in
any such case where there is no actual conflict but my participation
might be perceived as creating an appearance of conflict, I will
consult with agency ethics officials and review applicable rules and
precedents to determine whether recusal under the particular
circumstances presented would be appropriate.
Question 27. Will you also similarly excuse yourself from cases
involving your other employer, the AFL-CIO? For what period of time
would you remove yourself from participation on matters related to the
AFL-CIO?
Answer 27. Yes. I will apply the same time periods described in my
answer to your Question 26.
Question 28. In questions for the record submitted to you on July
30, 2009, Senator Michael Enzi, Ranking Member of the Senate Committee
on Health, Education, Labor, and Pensions, asked you the following
question: ``The Board annually evaluates and reports on the
effectiveness of its programs. What management experience do you have
in evaluating programs and what actions would you suggest the Board
take to improve the evaluation of programs?''
In your written response, you said:
``I have minimal management experience at this time. In
addition, I have little knowledge of the Board's existing
evaluation and reporting procedures. For these reasons, I would
not make any suggestions to improve the evaluation of programs
until I have fully informed myself about the existing programs
should I be confirmed.''
Since this time, have you reviewed the Board's evaluation and
reporting procedures?
Answer 28. No, I have not had the opportunity to do so.
Question 29. If so, do you have suggestions for the Board to
improve the evaluation of programs?
Answer 29. Please see my answer to your Question 28.
Question 30. Do you think the NLRB has adequate fiscal resources to
carry out its work effectively and efficiently?
Answer 30. I have not had a full and complete opportunity to review
appropriations to the Board, the Board's budget, and other relevant
documents or to confer with all knowledgeable staff at the Board. Until
I have the opportunity to do so, I will not form any conclusions about
this matter.
Question 31. Do you think the NLRB has sufficient staff to meet the
demands placed on it?
Answer 31. I have not had a full and complete opportunity to review
appropriations to the Board, the Board's budget, and other relevant
documents or to confer with all knowledgeable staff at the Board. Until
I have that opportunity to do so, I will not form any conclusions about
this matter.
______
Letters of Support
New York University,
New York, New York 10012-1099,
January 19, 2010.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
428 Dirksen Building,
Washington, DC 20510.
Hon. Mike Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
428 Dirksen Building,
Washington, DC 20510.
Re: Confirmation of Craig Becker as a Member of the NLRB
Dear Chairman Harkin and Ranking Member Enzi: I have practiced and
taught labor and employment law for over 30 years, hold the Dwight D.
Opperman professorship at New York University School of Law, direct
NYU's Center for Labor and Employment Law, and serve as Chief Reporter
for the American Law Institute's Restatement (Third) of Employment Law.
I am writing in support of the confirmation of Craig Becker to be a
member of the National Labor Relations Board (NLRB or Board), and I do
on the following basis.
The President, in my view, should enjoy a broad latitude in
selecting members of his administration, including members of
independent agencies like the NLRB. Congress has the responsibility to
make sure that the President's selections do not have disqualifying
problems of competence or character; if the President's nominees do
pass that test and fall within a broad zone of acceptability, Congress
has a reciprocal duty to confirm the President's choices. That is
particularly true with respect to the NLRB. There is a good deal of
controversy over whether the NLRB still functions as an effective
agency in enforcing statutory rights and obligations. Much of this
controversy has played a role in the debates over the proposed Employee
Free Choice Act, still under consideration in Congress. It is therefore
in the interest of all--employees, employers, unions, judges and
lawyers--that the Board operate with a full complement reflecting the
various Presidential choices over time as to the best people for the
job.
It is clear that Mr. Becker passes the tests of competence and
character and falls within the broad zone of acceptability. Although I
have sometimes disagreed with his legal positions and his writings, I
have consistently found his work to be the product of a highly
intelligent, thoughtful person who knows and understands the labor law
materials and is open to reasoned discussion.
Based on my interactions with him, I am confident that he will be a
most able member of this distinguished agency.
I urge you to confirm Mr. Becker as a member of the Board. If you
have any questions or wish to discuss this further, please advise.
Sincerely,
Samuel Estreicher,
Dwight D. Opperman Professor of Law Director,
Center for Labor & Employment Law;
Co-Director, Institute of Judicial Administration.
______
University of California, School of Law,
Irvine, CA 92697-8000,
January 21, 2010.
Hon. Harry Reid, Majority Leader,
U.S. Senate,
Washington, DC 20510.
Hon. Mitch McConnell, Minority Leader,
U.S. Senate,
Washington, DC 20510.
Re: Confirmation of Craig Becker as a Member of the NLRB
Dear Senator Reid and Senator McConnell: As teachers and scholars
of labor law, we write to express our strong support for the
confirmation of Craig Becker to be a member of the National Labor
Relations Board. We believe firmly that, if confirmed, Mr. Becker will
prove to be one of the most respected Board members in the history of
the NLRB.
Mr. Becker possesses unparalleled qualifications to be a member of
the Board. He has practiced labor law for many years and also taught
and written extensively about labor law and related subjects. Mr.
Becker has had an enormous range of practical experience in the field
of labor law, having represented a broad range of unions in the public
and the private sector as well as many individual workers, both union
members and nonmembers. He has argued cases in virtually every U.S.
Court of Appeals and in the U.S. Supreme Court, many of them among the
most important labor law cases of the last several decades. He has also
taught labor law at several of our Nation's finest law schools,
including the University of Chicago, Georgetown and UCLA. His
scholarship reflects a great respect for and deep knowledge of the law
and weighs and considers all arguments in a fair and honest manner. His
articles are widely cited, regularly used in law school classes, and
admired by labor law scholars across the political spectrum.
Despite Mr. Becker's obvious qualifications to be a member of the
NLRB, his opponents have made a series of misleading and inaccurate
statements about him and, in particular, about his published work. We
urge anyone considering Mr. Becker's nomination not to rely on sound
bites, fragments taken out of context, and misquotations, but to
actually read Mr. Becker's scholarly writing.
Those of us who know Mr. Becker personally as well as those of us
who have read his work and are familiar with his professional
reputation can attest to his integrity, fairness, and dedication to
advancing Congress' purposes in adopting Federal labor law and to the
role of the NLRB. Without qualification we urge prompt confirmation of
Mr. Becker to be a member of the NLRB.
Sincerely,
Catherine Fisk,
University of California, Irvine--School of Law.
I am authorized to state that the following have read this letter
and join it. The institutional affiliations are listed for purposes of
identification only.
James Brudney, Ohio State University, Moritz College of Law;
Cynthia Estlund, New York University School of Law; Benjamin Sachs,
Harvard Law School; David Abraham, University of Miami School of Law;
James Atleson, State University of New York at Buffalo School of Law;
Mark Barenberg, Columbia University Law School; Esta Bigler, Cornell
University ILR School; Susan Bisom-Rapp, Thomas Jefferson Law School;
Christopher Cameron, Southwestern University Law School; Susan Carle,
American University, Washington College of Law; Kenneth Casebeer,
University of Miami Law School; Carin Clauss, University of Wisconsin
Law School; Lance Compa, Cornell University ILR School; Laura Cooper,
University of Minnesota Law School; Roberto Corrada; Denver University
School of Law; Marion Crain, Washington University School of Law;
Charles Craver, George Washington University Law School; Ellen Dannin,
Penn State University Dickinson College of Law; Kenneth Dau-Schmidt,
Indiana University, Bloomington--School of Law; Henry Drummonds, Lewis
& Clark--Northwestern School of Law; Fred Feinstein, University of
Maryland School of Public Policy; Janice Fine, Rutgers University
School of Management and Labor Relations; Matthew Finkin, University of
Illinois Law School; Michael Fischl, University of Connecticut Law
School; William Forbath, University of Texas Law School; Ruben Garcia,
California Western School of Law, Julius Getman; University of Texas
Law School; Michael Goldberg, Widener University School of Law; Alvin
Goldman, University of Kentucky Law School; Jennifer Gordon, Fordham
University Law School; Robert Gorman, University of Pennsylvania Law
School; William B. Gould, Stanford University Law School; Joseph
Grodin, University of California, Hastings College of Law; Michael
Hayes, University of Baltimore Law School; Dorothy Hill, Albany Law
School; William Hines, University of Iowa School of Law; Ann Hodges,
University of Richmond Law School; Alan Hyde, Rutgers University Law
School, Newark; Linda Kerber, University of Iowa College of Law and
Department of History; Karl Klare, Northeastern University Law School;
Thomas Kohler, Boston College Law School; Howard Lesnick, University of
Pennsylvania Law School; Ariana Levinson, University of Louisville,
Louis Brandeis School of Law; Anne Marie Lofaso, University of West
Virginia Law School; Deborah Malamud, New York University Law School;
Martin Malin, Chicago-Kent College of Law; Carlin Meyer, New York Law
School; Gary Minda, Brooklyn Law School; Charles Morris, Southern
Methodist University, Dedman School of Law; Maria Ontiveros, University
of San Francisco School of Law; James Pope, Rutgers Law School--Newark;
Cornelia Pillard, Georgetown University Law Center; Theodore St.
Antoine, University of Michigan Law School; Paul Secunda, Marquette
University Law School; Lorraine Schmall, Northern Illinois University
Law School; Sidney Shapiro, Wake Forest University Law School; Joseph
Slater, University of Toledo College of Law; Susan Stabile, St. Thomas
University Law School; Katherine V.W. Stone, UCLA Law School; Lea
VanderVelde, University of Iowa College of Law; Joan Vogel, Vermont Law
School; Marley Weiss, University of Maryland Law School; Martha West,
University of California, Davis--Law School; Donna Young, Albany Law
School; and Noah Zatz, UCLA Law School.
______
Laner Muchin,
January 29, 2010.
Hon. Harry Reid, Majority Leader,
U.S. Senate,
Washington, DC 20510.
Hon. Mitch McConnell, Majority Leader,
U.S. Senate,
Washington, DC 20510.
Re: Confirmation of Craig Becker as a Member of the NLRB
Dear Senator Reid and Senator McConnell: As a lawyer who has
represented employers in the private and public sectors for over 30
years, I am writing to describe my experiences with Craig Becker.
Over the years, I have worked with Mr. Becker on a number of
complex issues and cases that had significant implications for his
union clients, and my employer clients. Although we were both
aggressive advocates for our respective clients and their positions, we
were always able to have an open dialogue. I believe that Mr. Becker
always took the time to understand the issues from the employer's side,
and was willing to work creatively toward amicable resolutions of the
issues. In other words, he is a problem-solver, a characteristic that
is highly-valued in a lawyer.
Based on my many experiences, I believe that Mr. Becker's integrity
is exceptional, as is his knowledge of labor law, and he will be fair,
hard-working, and an asset to the National Labor Relations Board.
Very truly yours,
Joseph M. Gagliardo.
______
Sonnenschein Nath & Rosenthal LLP,
Chicago, IL 60606-6404,
January 28, 2010.
Hon. Mitch McConnell, Minority Leader,
U.S. Senate,
Washington, DC 20510.
Re: Confirmation of Craig Becker as a Member of the NLRB
Dear Senator McConnell: As an attorney who, for more than 47 years,
has practiced exclusively in the area of Labor and Employment Law
representing management, I am writing to urge the confirmation of Craig
Becker as a member of the National Labor Relations Board.
I have had the opportunity to work together with and in opposition
to Mr. Becker on a number of matters involving a significant number of
employers and employees, including litigation and collective bargaining
negotiations. Throughout, he has consistently demonstrated an
impressive grasp and appreciation of and deeply felt commitment and
dedication to the principles enunciated by Congress and embodied in the
National Labor Relations Act.
I have read of the concerns expressed by some that Mr. Becker would
prove ``doctrinaire'' and/or biased toward unions in his application of
the NLRA. It is my honest opinion, based upon first-hand experience
dealing with him, that these concerns are completely unfounded. On the
contrary, I am convinced that Mr. Becker would demonstrate fairness,
integrity, sound judgment and an abiding respect for all of the
congressionally mandated rights of employers, unions, and employees
alike. I respectfully urge you to support his confirmation.
Sincerely,
Richard L. Marcus.
Letters of Opposition
January 29, 2010.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Michael Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Enzi: The undersigned trade
associations represent millions of employers of every size, in every
sector, and region of the country. Unfortunately Mr. Craig Becker has
been renominated to serve as a member of the National Labor Relations
Board (NLRB) despite concerns that the employer community has
previously expressed. We continue to urge you to oppose the nomination
of Mr. Becker to the NLRB, however our letter is not intended in any
way to express an opinion about the nominations of Mr. Mark Pearce or
Mr. Brian Hayes to serve as members of the NLRB.
Mr. Becker's unorthodox views have been demonstrated through his
previous written commentary of the National Labor Relations Act, the
law he would be charged with interpreting and enforcing should he be
confirmed. Many of his beliefs would disrupt years of established
precedent and the delicate balance in current labor law. We have
significant concerns with the Board's ability to radically interpret
existing labor law should Mr. Becker be confirmed.
As we have expressed before the public still deserves an
opportunity through a formal confirmation hearing to hear from Mr.
Becker directly as to whether he still believes in the positions
espoused in his writings or whether his views on these issues have
changed over time. It is troubling that despite our concerns the
Administration has made it clear that they do not intend to nominate a
more appropriate individual to serve on the Board.
For these reasons, we continue to urge you to oppose the
renomination of Mr. Craig Becker to become a member of the National
Labor Relations Board.
Sincerely,
American Hotel and Lodging Association; American Organization of
Nurse Executives; American Trucking Associations; Associated Builders
and Contractors, Inc.; Associated General Contractors of America;
College and University Professional Association for Human Resources
Food Marketing Institute; HR Policy Association; Independent Electrical
Contractors, Inc; International Foodservice Distributors Association;
International Franchise Association; National Association of
Manufacturers; National Association of Wholesaler-Distributors;
National Federation of Independent Business; National Pest Management
Association; National Ready Mixed Concrete Association; National Retail
Federation; National Roofing Contractors Association; Printing
Industries of America; Retail Industry Leaders Association; Society for
Human Resource Management; Steel Manufacturers Association; and U.S.
Chamber of Commerce.
______
February 1, 2010.
Hon. Tom Harkin, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Michael Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Harkin and Ranking Member Enzi: The undersigned
manufacturing employers and associations are united in our concern with
the renomination of Craig Becker to serve as a member of the National
Labor Relations Board (NLRB).
The nomination of Mr. Becker poses a threat to our labor law
system, as his views and interpretation of labor law would radically
change the nature of the NLRB. In numerous academic journals and other
writings, Mr. Becker has espoused views that indicate he believes the
NLRB has the authority to make certain decisions that are pending in
proposed legislation. Such views would limit employers' ability to
communicate with their employees regarding union organizing efforts and
would promote a system of adversarial employee relations. Based on his
previous statements, we feel Mr. Becker would direct the NLRB to
rewrite current union election rules in favor of union organizers, a
decision that should be left to Congress. In particular, we are
concerned that Mr. Becker would use the actions of the NLRB to advance
aspects of the jobs-killing Employee Free Choice Act.
As employers, we feel that members of the NLRB should be unbiased
and committed to the principles of fairness and balance that have
developed our labor law system. Mr. Becker's radical interpretation of
these laws is not appropriate for members of the Board, who are charged
with administering our Nation's labor laws in an unbiased manner.
For these reasons, we continue to urge you to oppose the
renomination of Craig Becker to become a member of the National Labor
Relations Board.
Sincerely,
A.O. Smith Corporation; A. Schulman; Accurate Castings, Inc.;
Accuride International Inc.; Ace Manufacturing Industries; Aeries
Enterprises LLC; Ahaus Tool and Engineering, Inc.; Ahresty Wilmington
Corporation; Air Logistics Corporation; All American Mfg. Co.;
Allegheny Technologies Incorporated; Allied Machine & Engineering
Corp.; Allied Plastics Co., Inc.; Alloy Resources Inc.; Altadis USA,
Inc.; AM Castle; AMB Enterprises, LLC; American Circuits, Inc.;
American Coolair Corporation; American Dehydrated Foods, Inc.; American
Felt & Filter Company; American Foundry Society; American Hydro
Corporation; American Lawn Mower Company; American Safety Razor
Company; American Shizuki Corporation; American Shower Door; Amsco
Windows; Anchor Fabricators, Inc.; Anthony Timberlands, Inc.; Aries
Electronics Inc.; Arkansas State Chamber of Commerce/Assoc. Ind. of
Arkansas; Arm-R-Lite Door Mfg. Company, Inc.; Arobotech Systems, Inc.;
Arrow Adhesives Company; Artwoodworking & Mfg. Co.; ASC Profiles Inc.;
Ashley Furniture Industries; Associated Industries of Massachusetts;
Atlantic Mold & Machining Corp.; Atlas Machine and Supply Inc.; ATS
Medical, Inc.; Auburn Gear, Inc.; Auto Truck, Inc.; Avtron Aerospace,
Inc.; Bannish Lumber, Inc.; Batesville Products, Inc.; Beacon
Converters, Inc.; Bead Industries, Inc.; Beck Steel; Bell Laboratories,
Inc.; Belton Industries, Inc.; Bergsen Inc.; Berkley Screw Machine
Products, Inc.; Berlin Metals; Bertch Cabinet Mfg., Inc.; Best Chairs,
Inc.; BesTech Tool Corporation; Better Baked Foods, Inc.; Betts
Industries, Inc.; BH Electronics, Inc.; Bicron Electronics Co.; Big D
Metalworks; BioResearch Associates, Inc.; Bison Gear & Engineering
Corp.; Blue Bell Creameries, L.P.; BlueScope Steel North America;
Bollinger Shipyards, Inc.; Bommer Industries, Inc.; Boston Steel & Mfg.
Co.; BPI, Inc; Braun Northwest, Inc; Brick Industry Association;
Bridgestone Americas, Inc.; Brigham Exploration Company; Brinkman
International Group, Inc.; Broan-NuTone LLC; Broderson Manufacturing
Corp.; Brush Engineered Materials; Buckeye Fabricating Company; C and M
Manufacturing Incorporated; Calgon Carbon Corporation; Cambridge
Specialty Co.; Cameron Manufacturing & Design, Inc.; Cardinal Systems
Inc.; Carter Products Co., Inc.; Case Systems, Inc.; CASHCO Inc.; CB
Manufacturing & Sales Co., Inc.; CEMCO Inc.; Cemen Tech, Inc.;
Centennial Bolt, Inc.; Central Bindery Company; Central States Fire App
LLC; CFX Battery, Inc.; Chaney Enterprises; Channellock Inc.;
Chatsworth Products, Inc.; Chemstar Products; Clinch-Tite Corp.; Clow
Stamping Co.; CMD Corporation; Coast Controls, Inc.; Coastal Forest
Resources; Coastal Plywood Company; Coating Excellence International;
ColorMatrix Corporation; Commercial Cutting and Graphics, LLC;
Conestoga Wood Specialties Corporation; Construction Specialties, Inc.;
Con-way, Inc.; Cooper Tire & Rubber Company; Corbett Package Company;
Crafted Plastics, Inc.; CrossCountry Courier; CRT, Custom Products,
Inc.; Crysteel Manufacturing Incorporated; Custom Applied Technology
Corp.; Custom Tool and Grinding, Inc.; Dakota Awards, Inc.; Dakota
Specialty Milling, Inc.; Dart Container Corporation; Davron
Technologies, Inc.; Dayton Industries Inc.; Deist Industries, Inc.;
Delta Power Company; Dews Research Laboratories, LLC; Dietz & Watson,
Inc.; Dixie Printing & Packaging Corporation; Dixon Insurance Inc.; DLH
Industries, Inc.; Domain Communications LLC; Don R Fruchey, Inc.; DORMA
Architectural Hardware; Dorner Mfg. Corp.; Drawn Metals Corporation;
Drenth Brothers Inc.; DRT Mfg. Co.; DTR Industries, Inc.; Duke
Manufacturing Co.; DuPage Machine Products; Duraclass by TBEI; Du-Well
Grinding Enterprises, Inc.; E&E Manufacturing Co. Inc.; E.D. Bullard
Company; East Penn Manufacturing Co., Inc.; East-Lind Heat Treat, Inc.;
Eclipse Inc.; Edison Price Lighting; Elan Technology, Inc.; Electro Arc
Mfg. Co. Inc.; Electronic Systems, Inc.; Ellwood Group, Inc.; EM-CO
Metal Products, Inc.; Emery Corporation; Energy Exchanger Company;
Engineered Building Design, L.C.; Ervin Industries; Everhard Products,
Inc.; Exxel Outdoors, Inc.; F.C. Brengman & Associates; F.N. Sheppard &
Co.; Falcon Plastics, Inc.; Fargo Assembly Co.; Fiber Resources, Inc.;
Fiberglass Coatings Inc.; Flambeau, Inc.; Flexcon Industries Inc.; FONA
International; Food Services of America; Forrest Machine, Inc.; Foster
Transformer Co.; Founders Insurance Group, Inc.; Fox Valley Molding,
Inc.; Foxx Equipment Company; Franklin International; Frasal Tool;
Fredon Corporation; Freedom Corrugated, LLC; Freeport Welding &
Fabricating, Inc.; GCR Associates; Gemini, Inc.; General Machine
Products Co.; General Steel and Supply Company; Genest Concrete Works,
Inc.; Geokon Inc.; Glas-Col, LLC; Glasforms Inc.; Glastender, Inc.;
Glier's Meats Inc.; Globe Products Inc.; Gold'n Plump Poultry; Gossner
Foods Inc.; Grande Cheese Company; Granite Rock Company; Graphite
Metallizing; Green Bay Packaging Inc.; Grossman Iron & Steel Company;
Gruber Systems Incorporated; Guardian Industries Corp.; Hamilton Caster
& Mfg. Co.; Hammond Group, Inc.; Harden Furniture Company, Inc.;
Hardwood Products Company; Harold Beck & Sons, Inc.; Henry Brick
Company, Inc.; Henry Molded Products; Hercules Drawn Steel Corporation;
HES Inc.; HFI, LLC.; Hialeah Metal Spinning, Inc.; High Company LLC;
High Industries, Inc.; Hiwasse Manufacturing Company, Inc.; Hobson &
Motzer, Inc.; Holden Industries, Inc.; Horizon Steel Co.; HTI
Cybernetics; Hudapack Metal Treating Companies; Huron Automatic Screw
Co.; Huron Automatic Screw Company; Illinois Tool Works Inc.;
Industrial Fasteners Institute; Industrial Metal Fab, Inc.; Industrial
Nut Corp.; Industrial Spring Corporation; Interlocking Concrete
Pavement Institute; International Hydraulics Inc.; Iten Industries;
J.C. Steele & Sons, Inc.; J.T. Fennell Co., Inc.; Jaquith Industries
Inc.; Jasper Desk Company, Inc.; JELD-WEN; Jesco Industries Inc.;
Jobbers Moving & Storage; John Sterling Corporation; Johnsen Trailer
Sales, Inc.; Johnsonville Sausage LLC; Jorgensen Conveyors, Inc.;
Kapstone Paper and Packaging Corp.; Kell-Strom Tool Company Inc.;
Kercher Machine Works, Inc.; Keystone Nitewear Co. Inc.; Kitchen
Cabinet Manufacturers Association; Klann Incorporated; Kleenair
Products Co.; Kleenair Products Co.; Koike Aronson, Inc.; Koller-Craft
Plastic Products; Konz Wood Products; Kuryakyn Holdings, Inc.; L.D.
McCauley, LLC; La Deau Hinge Company; Lamiglas, Inc.; Lapp Insulators
LLC; Laserage Technology Corporation; Layton Truck Equipment Co., LLC;
Leech Carbide; LEECO Spring International; Leed Himmel Ind; Lifoam
Industries; Liftmoore, Inc.; Lord Corporation; Lovejoy Tool Company,
Inc.; LSI Industries Inc.; LSI Metal Fabrication Division of LSI
Industries Inc.; LSI MidWest Lighting; Luick Quality Gage & Tool, Inc.;
Lunar Industries, Inc.; M&M Hi Tech Fab, LLC; Mack Boring and Parts
Co.; Mansfield Industries Inc.; Markel Corporation; Mar-Mac Wire, Inc.;
Martindale Electric Company; Massachusetts Container Corp.; Materials
Processing, Inc.; Mathews Brothers Company; Mathison Metalfab, Inc.;
Mazak Corporation; McAlpin Industries, Inc.; McNaughton & Gunn, Inc.;
McNichols Company; M-D Building Products, Inc.; Meadows Mills Inc.;
Merrick Pet Care; Merritt Equipment Co.; Metal Moulding Corp Metal
Powder Industries Federation; Metal Products Company; Metallized Carbon
Corporation; Metals Service Center Institute; Metalworks Inc.; MET-L-
FLO Inc.; Metl-Span LLC; MFRI, Inc.; Micro Abrasives Corporation; Mid
Atlantic Manufacturing; & Hydraulics Inc.; Middletown Tube Works, Inc.;
Midmark Corporation; Midwest Fabricating Company; Midwest Metal
Products, Inc.; Mike-sells Potato Chip Company; Milbank Manufacturing
Company; Miles Fiberglass And Composets; Mina Safety Appliances Co.;
Mississippi Lime Company; Modern Metal Processing, Inc.; Molded Fiber
Glass Companies; Montana Silversmiths Inc.; Moore Industries
International Inc.; Morgan Ohare, Inc.; MTD Products Inc.; MTH Pumps;
Mullinix Packages, Inc.; N.C. Industries, Inc.; NACCO Industries, Inc.;
National Association of Manufacturers; National Bronze Mfg.;
National Capital Flag Co. Inc.; National Ceramic Company; National
Solid Wastes Management Association; National Tube Form; Nebraska
Chamber of Commerce & Industry; Nevada Heat Treating, Inc.; Nevada
Manufacturers Association; New Jersey Business & Industry Association;
Nordex, Incorporated; North American Association of Food Equipment
Manufacturers; North American Die Casting Association; North Dakota
Chamber of Commerce; North Dakota Petroleum Marketers & North Dakota
Retail Associations; Northeast PA Manufacturers & Employers
Association; Northeast Prestressed Products; Northern Concrete Pipe
Inc.; Nosco CTX; Nosco, Inc.; Novelis; NPC, Inc.; O. F. Mossberg &
Sons, Inc.; Oil City Iron Works, Inc.; Oil-Dri Corporation of America;
Olympian Precast, Inc.; Olympian Precast, Inc.; OMCO Holdings, Inc.;
Omega Design Corporation; Omega Precision Corp.; Open-Ended Response;
OSI/ISI/SunnyMaids; Paper machinery corporation; Parkway Products;
Parts Depot Inc.; Paulo Products Company; Pawling Corporation; Peerless
Saw Company; Pella Corporation; Pennsylvania Manufacturers'
Association; Penske Corporation; Penske Truck Leasing; Pepsi-Cola
Bottling Co., Inc. of Norton; Pepsi-Cola Bottling Company of New Haven,
MO; Pequot Tool & Mfg., Inc.; Perlick Corporation; Pete Lien & Sons,
Inc.; Peterson Manufacturing Co.; PGT Industries, Inc.; Phoenix
Electric Mfg. Co.; Pine Hall Brick Co., Inc.; Plastic Molded Concepts;
Plasticolors, Inc.; Plastics One; PMF Industries, Inc.; Polyfab Corp;
Portec, Inc.; Power Curbers Inc.; PPG Industries; PQ Corporation;
Prairie Tool Co. Inc.; Precision Automation Company, Inc.; Precision
Machined Products Association; Precision Steel Warehouse, Inc.;
Pretzels, Inc.; Price Pump Company; Printed Specialties Inc.; Process
Equipment, Inc.; Production Specialties Corporation; Quadrant Tool and
Manufacturing; Quality Chaser Company; Radiant Steel Products Company;
Radix Wire Company; Rain Flow USA, Inc.; Rainey Road Holdings, Inc.;
Rampe Mfg. Co. Torque Transmission Division; Ramsey Products
Corporation; Ranco Fertiservice, Inc.; RdF Corporation; Red Bud
Industries, Inc.; Reed Mfg. Services; Remanco Hydraulics Inc.; Reuther
Mold & Mfg. Co.; Riggs Industries and subsidiaries; Roaring Spring
Blank Book Co.; Roberts Automatic Products, Inc.; Robroy Industries;
Rock Industries, Inc.; RoMan Manufacturing, Inc.; Roppe Corporation;
Roquette America, Inc.; Roth Horowitz, LLC; Route 94 Consulting; ROW,
Inc.; RTI International Metals, Inc.; Rugby Manufacturing; Schatz
Bearing Corporation; Scot Forge Company; Scott Douglas Porter, Esq.;
Scott Metals, Inc.; Seals Eastern, Inc.; Searing Industries; SGS Tool
Company; Shar Systems, Inc.; Showplace Wood Products, Inc.; Shultz
Steel Co.; Signal Mountain Cement Company; Silbond Corporation; Sioux
Corporation; Siplast, Inc.; Sirois Tool Co., Inc.; SJE Rhombus; Smith
Setzer & Sons, Inc.; Solar Atmospheres Corporation; Sommer Metalcraft
Corporation; Southco Industries, Inc.; Southeastern Hose, Inc.;
Southern Alloy Corporation; Southern Champion Tray LP; Southland Tube,
Inc.; Spirax Sarco, Inc.; Spuncast, Inc.; St. Armands Baking Co.;
Standex International Corporation; Star Cutter Company; Star Iron
Works, Inc.; Steel Manufacturers Association; Steelscape, Inc.; Steffes
Corporation; Stellar Industries, Inc.; Sterking Engineering Corp.;
Sterling Engineering Corporation; Sterling Machine Co., Inc.; Stone
City Products, Inc.; Stoner, Inc.; Stoneridge Inc.; Streator Dependable
Mfg.; Strongwell; Sturm, Ruger & Co., Inc.; Suhner Manufacturing, Inc.;
Summers Manufacturing Co., Inc.; Sunnyside Corporation; Superior
Graphite Co.; Superior Oil Company, Inc.; Superior Woodcraft, Inc.;
Surpass Chemical Co., Inc.; Swanson Industries, Inc.; Sweet Street
Desserts; Syncro Corporation; Systems Services of America, Inc.;
Tailored Label Products; TBEI, Inc.; TCI, LLC; Teakdecking Systems,
Inc.; Techsys Chassis, Inc.; Tecumseh Packaging Solutions, Inc.;
Tegrant Corporation; TekTone Sound & Signal Mfg., Inc.; Templeton Coal
Company, Inc.; Tennessee Chamber of Commerce & Industry; Tennsco Corp.;
Ten-Tec, Inc.; Texas Association of Business; Textile Rental Services
Association of America; The Adams Company; The Challenge Machinery
Company; The DUPPS Co.; The Envelope Printery, Inc.; The Hill and
Griffith Company; The Kirk-
Habicht Company; The Knapheide Manufacturing Company; The Manitowoc
Company, Inc.; The MasonBox Co.; The Nelson Co. Inc.; The ROHO Group;
The Schwan Food Company; The Scotts Miracle-Gro Company; The Sheffer
Corporation; The Shockey Companies; The Timken Company; ThermoSafe
Brands; Thomas Instrument Co.; Thompson Management Associates; Thomson
Lamination Company, Inc.; ThyssenKrupp Waupaca, Inc.; Tiefenbach North
America, LLC; Tiffin Powder Coating Specialists; Timber Truss Housing
Systems, Inc.; Torco Inc.; Transducers Direct, LLC; Transportation
Costing Group, Inc.; Tree Top, Inc.; Trim-Tex, Inc.; Trumpf Inc.;
Tubodyne Company Inc.; Twin City Roofing, LLC; Tyco Electronics; Ultra
Tech Machinery Inc.; Unex Manufacturing Inc.; United Equipment
Accessories, Inc.; Uniweld Products Inc.; Unlimited Services; USG
Corporation; Utility Trailer Manufacturing Company; Valley Converting
Co., Inc.; Vanamatic Company; Ventahood, Ltd.; Vermeer; Virginia
Manufacturers Association; WMI; W.R. Meadows, Inc.; Wagstaff, Inc.;
Wahpeton Breckinridge Area Chamber of Commerce; Walnut Custom Homes,
Inc.; Walters Brothers Lumber Mfg., Inc.; Warren Distribution, Inc.;
Waste Equipment Technology Association; Waukesh Metal Products; Weiss-
Aug Co. Inc.; Weldon Solutions; Werthan Packaging, Inc.; WESCO
International, Inc.; Western extrusions; Westside Finishing Co., Inc.;
Wildeck, Inc.; Williams-Pyro, Inc.; Winslow LifeRaft Company; Wire Belt
Company of America; Wisconsin Valley Concrete Products Co.; Wood
Connection, Inc.; Wood's Powr-Grip Co., Inc.; WPT Power Transmission
Corp.; Xybix Systems, Inc.; Yancey's Fancy, Inc.; Young's Welding,
Inc.; Zippo Manufacturing Co.
[Whereupon, at 5:07 p.m. the hearing was adjourned.]