The Huffington Post’s Sam Stein blogs that “two sources with knowledge of the situation told HuffPost” that President Obama intends to renominate executive branch and judicial nominees the Senate returned to the White House on Dec. 24. That’s a precise attribution, eh? Not “White House sources” but “sources with knowledge of the situation.” Well, it would hardly come as a surprise for President Obama to stick by the people he thought were worth nominating in the first place.

We’d hope he’d at least reconsider Craig Becker, the SEIU counsel and card check apologist nominated to serve on the National Labor Relations Board. (See our Dec. 27 post.) It’s not as if the SEIU lacks access to the Administration to speak on important policy issues, right?

P.S. Michael Whitney at the lefty blog Firedoglake reports that Becker has been renominated, using Stein’s report as the source. Look again.

Amid the health care and debt debates on Dec. 24, the Senate conducted a bit of low-profile but welcome business, sending back to the White House a number of controversial nominees made by President Obama.

Included in the list of too-hot-to-touch nominees is Craig Becker, counsel for the Service Employees International Union nominated to serve on the National Labor Relations Board. Becker has proposed a radical shifting of employee-employer relations to force unionization of workplaces. The National Association of Manufacturers formally opposed his nomination.

Despite Becker’s outside-the-mainstream views, the Senate Health, Education, Labor, and Pensions Committee confirmed his nomination without even holding a hearing to hear Becker’s testimony. Sen. John McCain (R-AZ) subsequently put a hold on Becker’s nomination.

Here’s the Senate’s rejection of the nominee made via a procedural move as reported on page S14139 of The Congressional Record:

ORDER FOR NOMINATIONS RECEIVED
Mr. CARDIN. As in executive session, I ask unanimous consent that all the nominations received by the Senate during the 111th Congress, first session, remain in status quo, notwithstanding the December 24, 2009, adjournment of the Senate, and that the provisions of rule XXXI, paragraph 6, of the Standing Rules of the Senate, with the following
exceptions: PN1119, COL David Teeples; Calendar No. 32, Dawn Johnsen; Calendar No. 205, Mary Smith; Calendar No. 312, Christopher Schroeder; Calendar No. 488, Edward Chen; Nos. 491 and 492, Craig Becker, and Calendar No. 579, Louis Butler.
The PRESIDING OFFICER (Mr. PRYOR). Without objection, it is so ordered.

The Washington Post briefly reported the Senate’s action at its Federal Eye blog. Edward Hopson at the Wyatt Employment Law Report also notes Becker’s problems and reports that the other two nominees to the NLRB — former Republican Senate staffer Brian Hayes, and Buffalo, N.Y., labor lawyer Mark Pearce — were not voted on by the Senate.

The President can send Becker’s nomination back up to the Senate in 2010, but might we see the first occasion for an Obama recess appointment? In the Bush Administration, Senate rejection prompted recess appointments (see CRS report), but the Obama Administration has yet to take that step in light of the Democratic majority in the Senate.

Whatever the next steps, the Senate’s action is a clear statement from the Democratic majority that the nomination of a top union lawyer with a history of seeking to marginalize employers was politically untenable.

UPDATE 4:40 p.m. The Senate’s action occurred under Rule XXXI, Paragraph 6, of the Standing Rules of the Senate. Also, this Point of Law post covers the Senate’s decision to return the nomination of two controversial judicial nominees, Louis Butler and Edward Chen.

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.

Taking a break from intimidating attendees at Congressional town hall meetings — “It is critical that our members…come out in strong numbers to drown out their voices.” — the SEIU responds to an op-ed in The Wall Street Journal by John Irving, former general counsel of the National Labor Relations Board, headlined, “Don’t Employers Deserve Free Speech?”

To which the service employees union answers with a forceful NO! At the union’s bully boy blog, the SEIU writer claims, “Shock: Corporate Advocates Who Break the Law Don’t Want to Be Punished.”

Here’s a more accurate description: Corporate advocates don’t want employers who express their opinions punished for that expression. And they don’t want speech chilled by union organizers who will use provisions of the Employee Free Choice Act to file repetitive, harassing and groundless complaints in the hope the NLRB might issue an injunction against the employer.

Here’s exactly what Irving said that the SEIU-nik objected to:

Today, according to the National Labor Relations Act—as amended in 1947—employers are permitted to express themselves to their employees with “views, argument, or opinion . . . if such expression contains no threat of reprisal or force or promise of benefit.” Of course, this leaves unclear just what constitutes lawful opinion versus unlawful threats or promises. And over the years, the shifting composition of the NLRB—and of the courts—has caused disagreements over what permissible free speech is.

For example, employers who might sincerely assert to their employees that “unions cause plant shutdowns” or “could cause loss of customers” may or may not be exercising lawful free speech, depending on the views of the labor board at the time. If employers fall afoul of the law today, they face only nonpunitive “make-whole” and “cease and desist” sanctions.

But EFCA dramatically escalates these penalties. Under the new bill, the employer could be subject to a $20,000 fine for each questionable statement, and to near-automatic injunction proceedings based on union-filed unfair labor practice charges.

Union organizers routinely file frivolous complaints during negotiations to drive up the monetary costs and public relations damage from resisting unionization. It’s part of the union playbook.

Anyway, thanks to the SEIU for reminding us of this column by Irving, who is of counsel at Kirkland & Ellis and a member of the NAM’s Labor and Employers Advisory Counsel. It’s a good reminder that the unions may pursue a fall-back strategy with the Employee Free Choice Act in Congress: The card check provisions could well be dead, but labor is still insisting on the horrible binding arbitration provisions. At a late moment to win a vote or two, labor’s allies in Congress could drop binding arbitration and still declare a victory with quick “ambush” elections and increased penalties against employers for expressing their views on unionization. The outcome, while not a full union victory, would still do great damage to employer-employee relations and managerial flexibility.

And the First Amendment.

(Thanks to Mary Katherine Ham The Weekly Standard for noting the SEIU strategy of drowning out their critics. Better drowned out than beat down, one supposes, which is exactly what happened to someone who ran afoul of the SEIU in St. Louis.)

It would be much easier to consider Citizens for Responsibility and Ethics in Washington a fair-minded advocate for transparency in government if the group weren’t so selective in its protests.

CREW has filed FOIA requests and now sued the Department of Homeland Security (complaint) in an attempt to get Secret Service records of the White House visits by health-care industry and trade association executives. Indeed, the group’s FOIA request names specific health-care officials CREW wants more information on.

From CREW’s home page, a statement posted on the latest developments, “White House Reponse to CREW Suit for health care execs visitor records insufficient,” and excerpts:

Washington, D.C. – While Citizens for Responsibility and Ethics in Washington (CREW) is pleased the White House has taken a step towards delivering the transparency promised in the first days of the administration, the letter sent by White House Counsel Greg Craig in no way satisfies CREW’s June 22nd Freedom of Information Act (FOIA) request for the Secret Service visitor records of 18 health care executives.

And…

Finally, transparency is not situational. It is not sufficient for the White House to release certain visitor records shortly before a press conference to avoid distraction. In a separate case, CREW recently sued the administration for failing to provide records related to White House visits by coal company executives.

Transparency is not situational, and yet CREW is interested in only health care executives and coal company executives. One of the Obama Administration’s welcome attributes is its openness, its willingness to hear from all sides of a policy issue, and yes, that includes health care and energy company executives.

So why is there not similar interest being demonstrated in the visits of labor officials or top lobbyists with the lawsuit industry? There’s good evidence that a top lawyer for the SEIU wrote at least one of the President’s first executive orders, and clearly organized labor has an open door and great influence with the White House. Then there’s the green lobby. Has CREW made a similar demand to acquire detailed information on which environmentalist leader has been meeting with Carol Browner?

By complaining only about business groups with access to the White House, CREW shows that its priority is not responsibility or ethics in government but rather opposition to the policies those businesses advocate. That’s just your usual anti-business lobbying cloaked by claptrap about transparency.

Mickey Kaus, the reform-minded Democrat, provides his take on the Illinois goings-on, and in the political skullduggery finds suspicions of card-check skullduggery.

Name That Issue! Hmm. What issue would be at the top of the “legislative agenda” of Andy Stern’s S.E.I.U. that Illinois Gov. Blagojevich generously offered to help pass after he was through appointing Obama confidante Valerie Jarrett to the U.S. Senate? If you said “card check”–the bill eliminating the secret ballot in union recognition elections–you win.

Rumors that the name of the bill is going to be changed to the “Rod Blagojevich Senator Choice Act” could not be confirmed as of press time. …

P.S.: Let’s assume SEIU president Andy Stern did nothing wrong, and indeed maybe even blew the whistle on Blagojevich’s offer of a “three-way” quid pro quid pro quo (after promising to “put that flag up and see where it goes”). Even so, if Stern was an authorized Obama “emissary” to the governor, in the attempt to get Jarrett a Senate seat, that should trouble opponents of “card check.” Why? Because it means Obama wasn’t worried about owing Stern a huge favor (if he’d succeeded in getting Jarrett the seat).  Would Obama do it if he was planning to disappoint Stern? …

True, “card check” isn’t the only issue Stern cares about. Universal health insurance would probably be considered a sufficient repayment of the favor. But “card check” will come up much sooner. … 11:30 P.M.

Meant to link to this earlier, “The Weekend Interview” from the Wall Street Journal, Matthew Kaminski talking to Andy Stern, head of the Service Employees International Union. And since the SEIU is in the news today…

“We just won an election. It’s no secret.” By “we,” Andy Stern means “American workers.” He also means Big Labor. Speaking on behalf of the fastest growing trade group in America, the Service Employees International Union — and as one of labor’s most powerful figures today — Mr. Stern sets this simple bar for the Obama presidency: “I expect nothing less than what he said he was going to do, and we should hold him accountable.”

From his perspective — atop SEIU’s Washington headquarters, which offers an enviable view of the National Cathedral — the first part is straightforward: “Massive investment” in a stimulus for the economy, the car industry, deficit-ridden states and infrastructure. Then universal health care, an issue on which the SEIU boss helped push the Democratic consensus leftward, and “tax cuts for the middle class” (and hikes for the upper bracketed). At the end of his list, Mr. Stern puts something particularly dear to unions: Quick adoption of the Employee Free Choice Act, commonly known as “card check,” which would end secret ballots in union elections.

The bit about accountability is no idle warning. Organized labor put up some $450 million to get Democrats elected. The SEIU accounted for $85 million of that, making Mr. Stern’s union the single biggest contributor to either party in this election cycle. And just in case, the SEIU set aside an additional $10 million fund to get people unelected if need be. “We would like to make sure people appreciate that we take them at their word and when they don’t live up to their word there should be consequences,” he says.

The interview does a good job of capturing Stern’s skilled patter on behalf of forced unionization (card check) and economic isolation and stagnation (protectionism). 

As a follow-up to yesterday’s post about the Employee Free Choice Act, Andy Stern, the Republican National Convention and Rage Against the Machine, let’s put aside the issue of card check and note just the basic facts, that is, the outrageous actions of a national labor union leader.

On Monday, Andy Stern, the president of the Service Employees International Union, appeared on stage at an SEIU-sponsored “Take Back Labor Day” event with Tom Morello, guitarist for the rock band, Rage Against the Machine. From the SEIU news release:

On Sept. 1 from noon to 7 p.m. at Harriet Island Regional Park in St. Paul, Minn., the musicians will share the stage with already-announced performing artists Steve Earle, Allison Moorer, and Tom Morello & friends. The Take Back Labor Day Festival, sponsored by SEIU, will include a concert, a You Tube station, a children’s area, and a large audience-participation art project. Joining the performers will be SEIU leaders Andy Stern and Anna Burger and other special guests.

Tom Morello has campaigned for the release of Mumia Abu-Jamal, who viciously shot and murdered Philadelphia police officer Daniel Faulkner on Dec. 9, 1981. (Morello’s YouTube promo here.) Mumia was convicted of the murder based on eye-witness accounts, but the anti-American left has made him a cause celebre.

In 2001, Morello visited the unrepentant Mumia in prison, writing later:

When the guard came in and said that my time was up, we pressed our fists together through the thick glass (his still in handcuffs), exchanged farewells, love and respects, and spontaneously shouted “power to the people!” in unison.

Mumia Abu-Jamal is a great man, a great revolutionary, and a friend.

So Andy Stern thinks Tom Morello is a worthy ally for the labor cause. And what would the proud members of the Fraternal Order of Police, Philadelphia Lodge #5, think?

The union sponsors a website, Justice for Daniel Faulkner. From that site’s biography of Officer Faulkner, noting the activism in support of the murderer, including by such groups as the Beastie Boys and Rage Against the Machine:

It is the weight of this coalition, built by the supporters of this killer, that demands that organizations such the Grand Lodge of the Fraternal Order of Police also weigh into this fight in an effective and substantial way. It is our responsibility to Danny, and all the fallen officers he represents, to assure that the public knows the truth about this incident and that substance will prevail over celebrity. Maureen Faulkner, Danny’s widow, cannot do it alone. The Philadelphia and Pennsylvania FOP Lodges cannot do it alone. The financial and public relations resources that have come together to render aid to this common killer with the uncommon knack for propaganda, are too much for any one group to face alone. It will take the effort of all the members of the FOP from across our country. We must all become aware of the facts of this case. We must speak out so that the truth is heard. Danny Faulkner was a good and decent man and an honorable police officer. He was brutally murdered and his killer is Mumia Abul-Jamal. This is a time when justice demands that no honest man sit silent.

Andy Stern doesn’t sit silent. He makes common cause with a rock celebrity who considers Mumia Abu-Jamal a hero and political prisoner — Mumia, the killer of a working man.

Solidarity.

Upon President Bush’s signing of H.R. 6304, the ACLU immediately filed suit in U.S. District Court for the Southern District of New York, seeking a court order to declare the law unconstitutional and stop it cold. The ACLU’s news release is here. The actual complaint in Amnesty v. McDonnell is available here.

We don’t intend to follow this aspect of the FISA debate because it’s the aggrieved versus government and the issue of civil immunity for the private sector is not raised. (As this New York Sun story notes.) Perhaps that side of the litigation will be handled by the Electronic Frontier Foundation, which for now is just protesting the new law in order to raise money.

Although, the congeries joining the ACLU in its suit is interesting and colorful.

The SEIU, eh? They’re just so busy with everything these days.