So Much for Recusal from SEIU Issues

Peter A. List of reminds us of Craig Becker’s ethics pledge, signed in conjunction with his recess appointment to the National Labor Relations Board. The pledge includes this affirmation:

I will not for a period of two years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.

Becker served as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations.

So explain this:

St. Barnabas Hospital and Committee of Interns and Residents, Local 1957, SEIU, Petitioner. Case 2–RC–23356

June 3, 2010


BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND BECKER [our emphasis] The National Labor Relations Board, by a three member panel, has carefully considered the Employer’s request for review of the Regional Director’s Decision and Direction of Election. The Regional Director directed an election among the Employer’s house staff. The Employer asserts, among other reasons, that the Regional Director should have considered the applicability of Brown University, 342 NLRB 483 (2004). We deny review.

We can guess the lawyerly defense: Oh no, I just recused myself from considering cases that involved SEIU International, not any of the locals. It’s a distinction without a difference: Local 1957, the Committee of Interns and Residents, affiliated with SEIU in 1997.

Indeed, Becker has already set the stage for the explanation. As the NAM’s Keith Smith wrote in a March 29 post about Becker’s confirmation hearing:

In his response to Senators’ questions, Becker committed to recusing himself for one year from any matters including either union internationals – the AFL-CIO or SEIU. This limited recusal is highly suspect. Most Board actions don’t normally involve internationals, but usually address conflicts between a local labor union and an employer. While Mr. Becker pledges not to be involved in the decisions of major labor organizations, he has not expressed a willingness to recuse himself of any decisions affecting labor local – and it’s entirely possible to make major changes in applying labor law through these decisions. This issue was noted by the letter sent from all 41 Republican Senators last week.

Well, if you’re going to blow through your ethics pledge, might as well be audacious about it. But Becker shouldn’t expect to be confirmed by the Senate via unanimous consent for a full term on the board.

Becker’s answers to three questions about recusal from SEIU cases are in the extended entry below:

13. Will you recuse yourself from all objections and SEIU complaints,
filed by or against the SEIU, while you are a Board Member?
Answer: I have entered into an ethics agreement with the NLRB which has been
approved by the Office of Government Ethics. I intend to fully comply with that
agreement, which provides as follows. Upon confirmation, I will resign from the
position of Associate General Counsel for the SEIU. Pursuant to 5 CFR 2635.502,
for a period of one year after my resignation, I will not participate personally and
substantially in any particular matter involving specific parties in which the SEIU
is a party or represents a party, unless I am first authorized to participate, pursuant
to 5 CFR 2635.502(d). In addition, I am vested in the Pension Plan for Employees
of the Service Employees International Union. This is a defined benefit plan and,
upon eligibility, I will receive monthly retirement benefits. Because I will
continue to participate in this entity’s defined benefit plan, I will not participate
personally and substantially in any particular matter that will have a direct and
predictable effect on the ability or willingness of SEIU to provide me with this
contractual benefit, unless I first obtain a written waiver under 18 USC 208(b)(1),
or qualify for a regulatory exemption under 18 USC 208(b)(2). Finally, 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 requirements cited above.
14. What standards of recusal will you apply?
Answer: I will use the standards of recusal applicable to executive branch officials
set forth in 5 CFR 2635 and in Executive Order No. 13490, considering any
other arguments for recusal raised in a particular matter based on the
relevant facts and applicable law and, where prudent, in consultation with
the agency ethics officer.
15. Certainly, at the least, you will agree to recuse yourself from any SEIU
cases which arose while you were its Associate General Counsel?
Answer: Please see my answer to question 13. In addition, I will not participate
personally and substantially in any particular matter involving specific parties that
arose while I was counsel to SEIU and in which the SEIU is a party, unless I am
first authorized to participate, pursuant to 5 CFR 2635.502(d)

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