Today, 41 Republican Senators led by Senators John McCain (R-AZ) and Orrin Hatch (R-UT) sent a letter to President Obama urging him not to “bypass the advice and consent traditions of the Senate” by seating Craig Becker to the powerful National Labor Relations Board through a recess appointment. By blocking cloture on his nomination, the Senate in February expressed bipartisan opposition to moving this nomination forward.

Becker’s defenders claim his appointment his necessary to create a full quorum on the five-member board, which is now operating with only two members. However, as today’s Senate letter notes, there is a bipartisan approach available to resolve this issue. The letter explains to the President:

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

Appears to us the easy way to have the Board fully staffed is for the Senate to clear the two nominations of Mr. Pearce and Mr. Hayes that were unanimously approved by the Senate HELP Committee.

The Senate echoes concerns from the employer community that Mr. Becker’s views on labor law are unsuitable for a potential Board member:

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

This letter also points out another unprecedented aspect of Mr. Becker’s nomination:

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

The NAM joined with 19 other employer organizations earlier this week to express similar concerns. Click here for more information.

UPDATE (2:55 p.m.): Coverage of letter:

• Wall Street Journal, “GOP Warns on Recess Appointment of Becker to NLRB“
• Washington Post (blog), “GOP senators warn Obama of NLRB recess appointment“
• Associated Press, “GOP senators warn Obama on recess appointment“

The Senate HELP Committee hearing on the nomination of Craig Becker to the National Labor Relations Board lasted about an hour, with Chairman Tom Harkin (D-IA) telling committee members to submit any additional questions to 10 a.m. Wednesday. The committee markup will be 10 a.m. Thursday, and it does appear that the Majority will try to schedule a Senate floor vote on the SEIU associate counsel’s confirmation before new Sen. Scott Brown (R-MA) is sworn on February 11.

Mr. Becker’s prepared statement is here. In that statement and in response to questions, he attempted to distance himself from the more inflammatory statements in his legal writings, such as “employers should have no legally sanctioned role in union elections.” Excerpt:

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.

Becker acquitted himself well in the hearing, which was not that contentious.
Sen. John McCain (R-AZ), who had placed a hold on Becker’s nomination in 2009, was the most aggressive of the questioners at the hearing, pressing Becker on his agreement to recuse himself from NLRB proceedings dealing with the SEIU for two years. That’s not good enough, the Senator concluded.

Sen. John McCain (R-AZ) has written to Chairman Tom Harkin (D-IA) of the Senate Health, Labor, Education, and Pensions Committee requesting a hearing on the nomination of Craig Becker to the National Labor Relations Board. “I strongly urge you …” is the phrase.

McCain, who serves on the HELP Committee, notes his previous objection in 2009 to the Chairman’s decision to move Becker’s nomination without a hearing. The Senate returned Becker’s nomination at the end of 2009 to the White House, which renominated him on Jan. 20.

From Sen. McCain’s letter: [Wed: Link fixed]

With the new opportunity afforded to us by Mr. Becker’s nomination being resubmitted to the Senate, it is critical that we conduct a full committee hearing on this important nomination.

The NLRB is a bipartisan body that has the crucial task of overseeing, in a balanced fashion, our nation’s workplace laws government by the National Labor Relations Act. The NLRB supervises union organization campaigns and addresses unfair labor practices by unions and employers. Through its rulings and activities the NLRB, in essence, forms the nation’s labor-management relations policy for employers and unions.

As you know, Mr. Becker has a long career of writings and activities that suggest his views concerning labor-management relations are far outside the mainstream in America. As such, I have serious questions about whether Mr. Becker has the ability to fairly consider important cases that come before the NLRB.

So does the National Association of Manufacturers.

Becker, an assistant counsel to the SEIU and AFL-CIO, is the unions’ candidate for creating a labor-backed majority on the NLRB, with the possible goal of implementing the anti-democratic Employee Free Choice Act administratively. As the leftwing The Nation recently argued, “Should Obama persevere and see his nominations confirmed, there is reason to believe that much of what organized labor hopes to accomplish via EFCA will be realized through the rule-making power of the NLRB.”

Thus, the political left and labor are counting on Becker to enact policy changes that in the American political system are the province of the policymaking branch of government, Congress. All the more reason for the policymaking branch of government to question Becker in person, on the record, at a HELP Committee hearing.

Fox News reports on the growing opposition to the nomination of Craig Becker, union attorney, to the National Labor Relations Board, “McCain Puts Hold on Senate Confirmation of Obama’s Labor Board Nominee“:

[McCain] and a slew of business groups are raising questions over articles and academic journals written by Becker on the very labor law he would work to interpret if confirmed to the board. Critics say Becker’s writings reflect views that support restricting employers’ free speech rights and limiting the ability of employers to converse with their employees during union representation campaigns.

“Mr. Becker is on the record supporting suppression of employer free speech,” McCain spokeswoman Brook Buchanan said in an interview with Foxnews.com on Thursday. Buchanan said McCain is calling for an on-the-record hearing to “give Mr. Becker the opportunity to clarify some of these views and opinions.”

Before the Senate HELP Committee markup session Wednesday, in which Becker was voted out by a 15-8 vote, Sen. Orrin Hatch (R-UT) released a statement requesting a full hearing on his nomination and calling Becker, “the most radical nominee to the NLRB in my experience in the Senate.”

Senator Hatch offers a substantive critique, including many direct citations of Becker’s writing. He concludes:

[Knowing] what I read from Mr. Becker’s own writings about his views on labor law and the NLRB, and based upon his written responses to the questions that I and others on this Committee submitted to him about those views, as well as his conduct in drafting the President’s labor Executive Orders while employed by the SEIU to benefit his employer, which is directly contrary to the President’s promise not to allow such conduct on his Transition Teams, I’m afraid that I cannot support his nomination for a five-year term on the NLRB.

For the sake of completeness, here’s Chairman Tom Harkin’s statement on the nominees considered Wednesday.

President Obama’s nominee to the National Labor Relations Board, SEIU counsel Craig Becker, was voted out of the Senate HELP Committee yesterday by a 15-8 vote, despite his never having to go through a committee hearing. Sen. John McCain (R-AZ) has placed a hold on his nomination.

In a letter to Committee Chairman Tom Harkin (D-IA) before the committee session Wednesday, McCain wrote:

While it is the President’s prerogative to nominate who he wishes, it is our duty in the U.S. Senate to review all of the Administration’s nominees. I have concerns regarding Mr. Becker’s written views, which indicate that he would prevent employers from having a role in union representation elections in their workplaces by doing away with requiring fair, secret ballot union elections when requested by an employer and I would like the opportunity to question Mr. Becker about these positions in person and in public.

More …

• WSJ Washington Wire, “NLRB Nominee Gets Mixed News From Senators“
• Washington Examiner, Bill Wilson op-ed, “Why did Obama appoint Gary Becker to the NLRB?“
• Workforce Management, McCain Delays Vote on Labor Board Nominee“:

With a bill that would make it easier for workers to form unions stalled in the Senate, many observers say that it is possible for a Democratic-majority NLRB to implement changes that would benefit labor in organizing campaigns.

“They could achieve through decision-making a lot of the facets that the Employee Free Choice Act in its current form proposes,” said John Bowen, a partner at Ford & Harrison in Minneapolis.

But he cautioned that major policy changes made by the board would be ephemeral.

“You’d be flipping back and forth depending on who’s in the White House,” Bowen said.

Ephemeral employment policy is bad, too.

As noted in previous posts on Mr. Becker, the NAM sent a letter to the HELP Committee members opposing his confirmation.

The Senate HELP Committee met to report out a slate of key labor nominees. While David Michaels’ nomination to head OSHA has been postponed, all other nominees cleared the Committee. Unfortunately, included in this slate was SEIU associate general counsel Craig Becker. Sen. McCain (R-AZ) requested a roll call vote on his nomination, and Ranking Member Sen. Enzi (R-WY) and Sen. Murkowski (R-AK) voted with every Democrat on the Committee in support of Becker’s nomination. Final vote was 15 to 8.

Sen. McCain stated that he plans to place a hold on Mr. Becker’s nomination as it now heads to the Senate floor. (UPDATE AP story.)

For more on Craig Becker’s nomination, click here.

Senator McCain and Governor Palin appeared on CNBC Tuesday for an interview conducted by Maria Bartiromo, who asked about the Employee Free Choice Act, i.e., the card check legislation that would encourage union intimidation of employees who do not want to join a union. From the CNBC transcript:

BARTIROMO: In addition to taxes, unions. Why haven’t you made the union issue a campaign issue? That is, the right to have a secret ballot. Why isn’t this a major issue on your agenda?

Sen. McCAIN: You know, we’ve talked about it a lot and unfortunately, there’s three or four issues that you can get out strongly. But this is–we’ve been talking about for a long time. This is a threat to the fundamental of labor management relations. It’s fundamental to democracy, the right to have a secret ballot. The way that Senator Obama envisions and the unions–and this is their big push, and they’ve gotten commitments from Senator Obama and Senator Biden–union organizer goes to your house and says, “Hey, Joe, can I sign you up for the union?’ That is–we all know what that opens the door to. It’s dangerous for America, it’s dangerous to small business and I think it’s a threat to one of the fundamentals of democracy.

BARTIROMO: Will you veto the bill?

Sen. McCAIN: In a New York minute, if I may say that. I will do everything  in my power to block such legislation. And imagine, Senator Obama, Nancy Pelosi and Harry Reid pushing the union agenda. It’d be very, very, very unfortunate. 

The presidential candidates have been on the record about card check for quite some time now; Obama voted for cloture when H.R. 800 came to the Senate floor in June 2007, and McCain voted no. (Roll call vote.)

But the issue has never been engaged in the presidential campaign: Debate moderators skipped the issue, unfortunately so. In addition, the mainstream media* have shown little interest in the union scheme that would institutionalize union abuse of employees while reorganizing the U.S. labor market along more static, European lines.

So, to CNBC and Mario Bartiromo, thank you for posing the question. We look forward to Senator Obama being queried in the same fashion.

* CNBC and Fox News have highlighted the issue, and in the print media, the Wall Street Journal’s editorial page has recently published several important pieces on card check:

• Labor Unions Prolonged the Depression, October 28, Mark Mix, President, National Right to Work Committee.
• The Election Choice: Unions — Obama’s pro-union agenda is the most ambitious in decades, October 27, Jason L. Riley.
• A Liberal Supermajority, October 17, editorial.

Last night during the final Presidential debate you may have heard the reference to a little known piece of legislation called the Ledbetter Fair Pay Act. In responding to a question on abortion issues and judges, Senator Barack Obama briefly discussed the Supreme Court decision in Ledbetter v. Goodyear Tire and Rubber and the legislation that was introduced days after the decision.

In the Ledbetter Decision, the Supreme Court reaffirmed current law by confirming prior Court decisions to uphold time limits in filing discrimination charges. This timely filing of charges is important to promptly investigate real instances of unlawful discrimination in the workplace.

Senator Obama references efforts to “overturn” the decision in the Senate, referring to the legislation introduced as “an effort to provide better guidance to the courts.”

In reality the scope of bill that was considered in the Senate, commonly referred to as the ‘Ledbetter Bill’, goes far beyond the issues raised in the Ledbetter decision and removes an important incentive to prompt identification and resolution of potential discrimination claims.

Although, Senator McCain didn’t fully respond to Senator Obama’s points on this issue, he was correct when he explained that the Ledbetter Bill was a “trial lawyer’s dream.”

To both their credit, Senators Barack Obama and John McCain have both been very clear about their positions on the Employee Free Choice Act, the card-check legislation that would eliminate secret ballots in workplace elections over union representation. But it wasn’t until just this week that we saw much media coverage of their stated views on the issue, stated at public events, that is.

Obama is a cosponsor who voted for cloture on H.R. 800, i.e., to move the bill ahead in the Senate. McCain is an opponent and voted no.

Senator McCain in Virginia Beach, Virginia yesterday highlighted Senator Obama’s position on card check in his speech. McCain said that along with Congressional leadership Senator Obama is planning to “…take away your right to vote by secret ballot in labor elections…” CNN even did a fact check on this sound bite and confirmed what the bill will do, along with the positions and previous votes of the Presidential and Vice Presidential candidates.

In case Senator Obama’s position isn’t clear enough, here is a clip of his comments on the misnamed Employee Free Choice Act last year before the Pennsylvania AFL-CIO.

The Examiner newspaper editorializes today on the tort reform records of the presidential and vice presidential candidates, asking a question of great interest to the business community: “Will either party’s presidential ticket keep a lid on the lawyers’ greed?”

The editorial uses NAM’s “Key Vote” voting records to assess Sens. Obama, McCain and Biden, taking special note of the most striking record — Biden’s. Of the 13 votes on tort reform and legal issues rated by the National Association of Manufacturers over the last four Congresses, Sen. Biden voted with the trial lawyers all 13 times. For business and the consumers, in other words, an 0-for-13 record.

And for the top of the ticket? From the editorial:

Obama’s Senate voting record is briefer but no less worrisome. The only time he voted right was on the Class Action Fairness Act, which makes it harder to move suits from state to state in search of a particularly lenient judge. That bill passed the Senate with a 72-26 bipartisan majority, so Obama’s vote made no difference. Before the final vote, however, he voted three times for “poison pill” amendments that would have eviscerated the bill’s effectiveness.

John McCain voted with the reformers nine of the 13 times cited by NAM, but occasionally sided with the trial lawyers on “patients’ rights.” His record gives evidence of a more balanced, case-by-case approach. Sarah Palin, meanwhile, comes from the state that the Pacific Research Institute ranks as having the second most favorable legal climate in the country. That’s one reason businesses like locating in Alaska — much as they will more frequently choose to come to the United States if we elect a president who understands the need to stop class-action lawsuit abuses while the rest of the world goes the other way.

You can see the NAM voting records legal reform here:

• Obama
• Biden
• McCain

The American Enterprise Institute’s Ted Frank has also written on the subject of Sen. Obama as a tort reformer, examining his votes on the Class Action Fairness Act. From the Examiner, “How bipartisan is Obama?”