President Obama skirted federal law and established procedures to appoint Lafe Solomon to serve as Acting General Counsel of the National Labor Relations Board, Sen. Orrin Hatch (R-UT) charged this week, calling on the President to withdraw Solomon’s appointment in the wake of the NLRB’s unjustified and economically disastrous complaint against The Boeing Company.

Hatch took to the Senate floor Thursday to dissect and denounce the NLRB’s complaint against Boeing for locating new assembly facilities in South Carolina instead of Washington State.  In a lengthy statement (available here), the Utah Republican analyzed the NLRB’s contravention of federal law labor, warned of the competitive consequences of bureaucrats making facility-siting decisions, and criticized the Obama Administration for putting the interests of organized labor before the nation’s.

NLRB's Lafe Solomon

Hatch also challenged the validity of President Obama’s June 21, 2010, appointment of Solomon to serve as Acting General Counsel, arguing that the President ignored the established procedures for such appointments under the National Labor Relations Act (NLRA). Instead, Hatch said, the President made Solomon his personal acting general counsel under “the more generous terms” of the Federal Vacancies Act, which is intended to apply to government vacancies in general.

Why did the President take this unusual step? Hatch:

Under the Vacancies Act, Mr. Solomon is allowed to stay in the job in an acting capacity, without Senate approval, for an initial 210 days—rather than the 40 days provided under the National Labor Relations Act—and then be reappointed again for another 210 days, and a third time for yet another 210 days, until the end of President Obama’s term.

This is yet another example of the President end running the law in order to ensconce in office individuals who would have a difficult time surviving the constitutionally required confirmation process—a process that ensures the people and their representatives have some meaningful oversight of the appointee.

Solomon filed the NLRB complaint against Boeing on April 20, acting in support of the International Association of Machinists and Aerospace Workers, which represents workers at Boeing’s Washington facilities. Given the timing cited by Sen. Hatch above, Solomon’s appointment as Acting General Counsel should have expired on July 31, 2010, depriving Solomon of the authority to take the later action against the airplane manufacturer.

Hatch’s analysis carries extra weight because of the Senator’s status as a senior member on both the Senate Health, Education, Labor, and Pensions Committee – which oversees the National Labor Relations Act — and the Senate Judiciary Committee. In challenging Solomon’s authority, the Senator also reinforces an argument made by Boeing in its defense.

Boeing’s formal response to the NLRB filed on May 4 challenges Solomon’s status, the 14th and final item in the list of the company’s defenses: “The Complaint is ultra vires because the Acting General Counsel of the NLRBdid not lawfully hold the office of Acting General Counsel at the time he directed that the Complaint be filed.” Ultra vires means outside of one’s authority. (continue reading…)

Sens. Mike Enzi (R-WY) and Orrin Hatch (R-UT) have led the opposition in the Senate to the President Obama’s nomination and subsequent recess appointment of the former SEIU and AFL-CIO counsel Craig Becker to the National Labor Relations Board. The NLRB’s outrageous complaint against The Boeing Company this week for expanding operations in South Carolina proves their point: Becker’s appointment has contributed to a radicalized NLRB that has abandoned its quasi-judicial role for pro-labor activism.

The Senators issued a news release in February as members of Senate Health, Education, Labor, and Pensions Committee urging President Obama to withdraw his latest nomination of Becker made in January.

“I oppose the nomination of Craig Becker absolutely. Over the past ten months, Mr. Becker has made his intention and bias clear. The NLRB is meant to be an impartial authority ensuring organizing freedom in the workplace, not a politicized institution bent on increasing unionization rates at the cost of American jobs. Last year, Mr. Becker was appointed against the will of the Senate. This year, I urge President Obama to work with Senators to identify a replacement nominee,” Senator Enzi said.

“Last year, the Senate rejected Mr. Becker’s nomination because there were serious questions as to whether he could remain impartial while serving on the NLRB. These questions have not been resolved and, if anything, it is more clear now that Mr. Becker is more interested in furthering a pro-union political agenda than in upholding our nation’s labor laws. If the President, as he stated in the State of the Union, is serious about relieving pressure on the business community and ushering in a new era of bipartisanship, he should withdraw the Becker nomination and work with us to find someone that both parties can support,” Senator Hatch said.

Our emphasis. They called it, didn’t they?

As a recess appointee, Becker can continue to serve without Senate confirmation through the end of 2012. Meanwhile, NLRB Chairman Wilma Liebman’s term expires Aug. 27, 2011.

Rumors are circulating of President Obama nominating Becker to Liebman’s five-year term. if Senate Republicans continued to block Becker’s nomination (a safe bet), the President might then recess appoint him to the vacancy. That maneuver would give Becker a position on the NLRB through the end of the 113th Congress, or December 2014.

(UPDATE, Clarification, 9:55 p.m.: Re-reading this Congressional Research Service publication on recess appointments, it appears a recess appointment could not last through 2014. Recess appointments are valid through the next session of the Senate. Thus, a recess appointment made in 2011 or between the two sessions of the 111th Congress would extend through 2012. One made in 2012 — during a spring recess, for example — would extend through the end of the next session, i.e., the first session of the 113th Congress, or through 2013.)

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From the Senate Republicans, @Senate_GOP:

At 3:30 ET today, Leader McConnell, Sen. Orrin Hatch, and Sen. @robportman will hold a press conference on free trade agreements.

Sens. McConnell, Hatch, and @robportman will call for immediate action from the president on pending free trade agreements.

Washington Post editorial, “Time to act on free trade:U.S. agreements with South Korea, Colombia and Panama should be approved — soon“:

The potential for a trade policy train wreck is real. Everyone needs to focus less on the political tit for tat and more on the policy case for getting these deals done as soon as possible, which is clear and strong. “It is time to identify the specific steps Colombia and Panama must take to move forward,” Mr. Baucus said Wednesday, “so we can finally approve our free-trade agreements with these countries, increase U.S. exports and create jobs here at home.” From a Democrat, that can hardly be considered unfriendly advice, and Mr. Obama would be wise to take it.

House Ways and Means Subcommittee on Trade, “Brady Announces First in a Series of Three Hearings on the Pending, Job-Creating Trade Agreements“:

Congressman Kevin Brady (R-TX), Chairman, Subcommittee on Trade of the Committee on Ways and Means, today announced that the Subcommittee will hold a series of hearings on the pending trade agreements with Colombia, Panama, and South Korea. According to the President’s own statements, these agreements have the ability to create over 250,000 American jobs. The first hearing will address the agreement with Colombia. The hearing will take place on Thursday, March 17, 2011, in the main Committee hearing room, 1100 Longworth House Office Building, beginning at 10:00 A.M. The Subcommittee will soon advise regarding hearings on the trade agreements with Panama and South Korea.

Testifying on behalf of the National Association of Manufacturers will be William D. Marsh, vice president legal – Western Hemisphere — for  Baker Hughes. Also scheduled to testify is Ambassador Miriam Sapiro of the U.S. Trade Representatives Office.

The USTR on Tuesday also hosts the American Chamber of Commerce in Korea on its annual visit to Washington, D.C. Last week U.S. and Colombian officials met in Washington to discuss the pending FTA. (Also here.)

The Miami Herald reports on President Obama’s upcoming trip to Brazil, Chile and El Salvador, “President Obama’s Latin agenda takes shape.”

U.S. Trade Representative Kirk testified on the President’s 2011 Trade Agenda at the Senate Finance Committee this morning. As expected, the focus was squarely on lack of progress on the Colombia and Panama free trade agreements. Unfortunately, despite an advance request by the Chairman and Ranking Member for a specific timetable on concluding the two agreements, Ambassador Kirk did not provide much of a road map on how the U.S. will proceed in addressing what the Administration feels are outstanding issues in both agreements.

U.S. Trade Representative Ron Kirk

When he appeared in front of the House Ways and Means Committee last month, Kirk promised the Administration wants to move the Korea trade agreement (KORUS) as soon as possible, and it would intensify efforts to resolve outstanding issues in the Colombia and Panama agreements so they could be moved as quickly as possible to Congress for approval –- by the end of 2011 if possible. At the time, we argued that all three agreements need to move as quickly as possible. We still absolutely believe this is the way things should proceed. The agreements with Colombia, Korea and Panama have languished since 2007, while our competitors in Europe and Asia continue to move aggressively to open those markets and gain preferential access for their manufactured goods exports.

The Chairman and Ranking Member of the Senate Finance Committee made it very clear they feel the same way. Chairman Max Baucus (D-MT) was crystal clear: “The time is long past to ratify the Colombia agreement,” said, continuing, “None of these agreements will pass unless they are all packaged together this year.” Ranking Member Orrin Hatch (R-UT) told Ambassador Kirk that he was tired of unfulfilled promises on Colombia and Panama. “It is the Administration’s inaction that speaks volumes – and these promises we’ve heard are inadequate,” the Senator said. Sen. Hatch pulled no punches in saying that he will view any attempt to move the KORUS FTA without action on Colombia and Panama in a very negative light. (continue reading…)

Surveying the tax policy debate today, we ascertain that the only thing certain is uncertainty.
Washington Post, “Obama, Democrats fail to agree on plan for expiring tax cuts“:

President Obama and congressional Democrats failed to agree on a strategy Thursday for extending an array of expiring tax breaks, with the party badly divided over whether to temporarily extend the cuts for all taxpayers or stick with their pledge to protect only the middle class

Radio talk show host Hugh Hewitt has been urging Congressional Republicans to demand a permanent extension of tax cuts, and he discussed tax policy with Gov. Mitch Daniels of Indiana, in an interview at the Republican Governors Association meeting in San Diego Thursday.

HH: Right now, this tax hike is looming at us. It’s coming at us like a tidal wave. And Paul Ryan said on Hannity the other night, and we love Paul Ryan, but he said we’ll take a two or three year extension of the existing tax rates. What do you think of that policy? What ought to be the policy of the Republicans going into this negotiation?

MD: Those are two different questions. I mean, first of all, I trust Paul Ryan. He’s one of the best assets the country’s got now. And he and I think alike about a lot of things. I mean, the right policy, of course, would be certainty, permanence, predictability. This is always the case in tax policy. A lot of businesses say they can live with a sub-optimal tax system as long as they know what the rules will be. You know, in Indiana, we passed the biggest tax cut in state history, and we cut property taxes, which are now the lowest in America. But maybe the more important thing that we did was we, and we just made this part of our constitution two weeks ago, we put those caps, there’s a cap now at 1% on the value of your house, 2% on your farm or rental property, 3% your business, permanently. It can be lower than that, but it can never be above it. And a lot of businesses say that it’s the certainty of that that’s as important to them as the fact that the rates are low. And the same would apply, I think, to federal policy.

But look, if Paul Ryan and other folks down there who know that think that let’s get the best deal we can now and fight another day, I’d defer to their tactical judgment.

Sen. Orrin Hatch (R-UT) and Sen. Chuck Grassley (R-IA) held a colloquy on the Senate floor on Thursday. From Sen. Hatch’s release, “Hatch Outlines Cost of Looming Tax Increase on Utah Families, Businesses.”
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Sen. Orrin Hatch (R-UT) spoke on a conference call with bloggers today, primarily on the topic of the tax increases that will hit on Jan. 1 unless Congress extends the lower rates enacted in 2001 and 2003. Among other issues that arose were the Employee Free Choice Act, the potential of a lameduck session of Congress, and President Obama’s recess appointment of Dr. Donald Berwick to head the Centers for Medicare and Medicaid Services.

Sen. Hatch noted that President Obama made the recess appointment before there had even been a committee hearing on Berwick’s nomination, and then, after the appointment, nominated Berwick again. Hatch obviously saw a similarity with the handling of the nomination and subsequent recess appointment of Craig Becker, an SEIU and AFL-CIO counsel, to the National Labor Relations Board. Sen. Hatch:

They’ve got people on the National Labor Relations Board right now that think they can do though regulation, by the board, that which can’t get through the Senate of the United States of America.

The Senate is not going to give them card check, it’s just that simple. So what are they going to do? They’re going to come up with an approach, or have come up with an approach, that says only those who vote count in the card-check area, or in any other area – in other words, only 51 percent of those who vote, in the whole employment complex.

Now that kind of stuff has never been done before, but they’re doing it.

When they don’t have the ability to do what’s right, they’ll do what’s wrong. And to be honest with you, it’s giving us a lot of fits.

Given the context of the conversation, we took Hatch’s “they” to be the Obama Administration and Senate Democratic allies, supported by Big Labor.

Sen. Hatch is recalling the National Mediation Board’s decision in May to allow a union to be recognized if a simple majority of workers who cast ballots approved. The decision, which applies to workers at airlines and railroads, overturned a 76-year-old rule that governed union elections. The new rules went into effect on July 1, the NMB said in a news release.

The Senator’s comments raised a realistic concern: If one regulatory and quasi-judicial agency with an Obama-appointed majority on its board can make such a radical change in longstanding law, what’s to stop the NLRB from doing the same?

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“

Sen. Orrin Hatch held a conference call with bloggers at noon today to talk about health care legislation and offer his critique of the possibility of Senate Democrats using reconciliation to push through a bill despite the public’s overwhelming opposition. (See the Senator’s Washington Post op-ed, “Reconciliation on health care would be an assault to the democratic process.”)

We took the opportunity to ask for the Senator’s thoughts on the possibility of President Obama making a recess appointment of Craig Becker to the National Labor Relations Board. On Feb. 9th, the Senate failed to invoke cloture on Becker’s nomination by a bipartisan vote of 52-33.

Sen. Hatch:

When you have a clear cut vote like that, the President shouldn’t do it, should not recess appoint him. If he does …

The man is off the wall. He’s very smart, I mean, I don’t mean to demean him. He’s a smart man. In fact that’s one of the problems. He will do any thing to help the SEIU and the AFL-CIO. Anything!

And that includes doing by regulation at the NLRB that which you could never get through legislation, and once they do that, I think it would be not only unconstitutional, but, you know, illegal, but it would take years all the way through the Supreme Court to change it. And that’s what they’re up to.

I can’t believe the president would put Becker up there, knowing how very …That was even a bipartisan vote against Becker, by the way, and I’d be very surprised if he did that.

Now, I don’t dislike the man personally. I dislike his views. He’s a smart guy, there’s no question about it. But he is an ideologue, there’s no question about that. He’s going to do whatever those big unions want. And, you know, they want power, more than anything else, and that’s what they’re going to give him if he’s recess appointed.

The audio is here.

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.

More from The Wall Street Journal’s editorial on Craig Becker, SEIU counsel and President Obama’s nominee to the National Labor Relations Board, “Acorn’s Ally at the NLRB“:

Mr. Becker also won’t give a clear answer about his role in preparing several pro-labor executive orders issued by President Obama shortly after inauguration. Mr. Becker’s name was found in at least one of the documents, suggesting that he had written it.

When asked by Sen. Hatch if he was “involved or responsible in any way” for these executive orders, Mr. Becker responded: “I was not responsible for [the specific executive orders] except as described below. As a member of the Presidential Transition Team, I was asked to provide advice and information concerning a possible executive order of the sort described. I was involved in researching, analyzing, preliminary drafting, and consulting with other members of the Transition team.” In other words, Mr. Becker was the main author but would rather not say so explicitly.

Why not? Well, perhaps because Mr. Becker seems to have been on the SEIU payroll at the time he did his “drafting.” Many people take leaves of absence from their private jobs when serving on a transition team, but Mr. Becker says he was on “vacation.” And his “vacation” seems to have been sporadic. “My work on the Transition Team was not full time or continuous . . . When I was not on vacation in order to work on the Transition Team, I continued to perform my regular work for both SEIU and the AFL-CIO.” The White House has made a public show of banning paid lobbyists from certain Administration jobs, but it let a paid union operative draft government documents benefiting unions.

We believe this information about Mr. Becker writing executive orders was first reported by Shopfloor.org in a January 31 post, “President Obama and Organized Labor V, Executive Orders Authorship”:

Check the metadata of the following executive order signed by President Obama yesterday, and you’ll find the author of the original .pdf document:

• NOTIFICATION OF EMPLOYEE RIGHTS UNDER FEDERAL LABOR LAWS

It’s Craig Becker, associate general counsel of the Service Employees International Union, the SEIU. (Or counsel.)*

Becker served on the Obama transition’s “agency review team” for the Department of Labor.

Guess that’s what they meant by “Your Seat at the Table.”

Even more reason for the Obama Administration to  ask Senate HELP Committee Chairman Tom Harkin for a confirmation hearing on the President’s NLRB nominees. Transparency, accountability …