Friday, February 5, 2010

Scott Brown In Another Race

By the time this article posts, Scott Brown will likely already have been certified and sworn in for his seat in the Senate. Still, Brown had to push hard for the certification and subsequent confirmation so that he could participate in the debates over several issues, not the least of which is the nomination of Craig Becker as the new member of the National Labor Relations Board NLRB).

The Senate hearings on Becker have been scheduled for Thursday, but may go forward as late as this post. He was approved by the Senate Labor Committee by a 15-8 vote a few months ago, and he has become a sticking point for Republicans and moderate Democrats. There has been much discussion over the past few days on the blogs over this nomination, but one issue of paramount importance has been largely ignored.

Becker's radical views aside for a moment, the real reason behind the rush to get Brown into the Senate and another voice in opposition is the following: There are over 400 NLRB decisions at issue in which less than the full Board issued rulings which have not yet been implemented. Two federal appeals in two separate federal districts were filed requesting that the courts determine if such decisions are binding. The two courts reached exactly opposite conclusions, which means the cases, as they currently stand, are on their way to the United States Supreme Court.

Becker's qualifications and radical political views will remain at issue if he is subsequently confirmed despite Brown's input and vote. But if Brown and Republicans are unable to defeat the nomination, the real reason behind the Brown confirmation rush will become abundantly clear. All that will be required to fend off a possible Supreme Court decision is for the Board to take another vote on the 400+ decisions which are currently in limbo, and they become binding with no further word from the Supreme Court necessary. The litigation, as we say in the law, is rendered moot by the full Board votes. Note that this does not determine the facial constitutionality of each decision, only the need for the Supreme Court to render a decision on the earlier issue.

Now for the reasons Becker must be rejected by the Senate, if at all possible. Those new votes, with Becker as a sitting member of the Board, will go from their current moderately pro-business thrust to a radical left, pro-union vote overnight. There are two Democrats and two Republicans now sitting on the Board. Becker would make the third Democrat, and thereby supply not only a Democrat take on all the pending (and future) decisions, but a far left, pro-union, progressive wing vote as well. Becker is not a traditional union-friendly Democrat, he is a radical unionist.

As I'm sure you all know, "card check" is currently an issue facing Congress. Many Democrats favor it, but Becker believes it's not even an issue for debate. He believes that every business should be unionized, and the only choice should be which union the worker will be forced to join. So something as basic as card check versus democratic secret ballots isn't even on Becker's radar. Card check for him is simply a more streamlined way of insuring that unions represent every worker in the United States. He believes in this so strongly that he has indicated that regardless of what the Congress decides, he will use his regulatory power to ensure that card check will become the rule anyway. All the better to eat you with, my dear.

When Becker was first nominated, The Wall Street Journal called him "labor's secret weapon." A WSJ columnist also referred to Becker as "Andy Stern's go-to guy." And indeed, Becker has been the SEIU's lead counsel, as well as counsel for the AFL-CIO. They quoted him as saying "all workplaces should be unionized, and the only choice is which union." He has been the happy warrior for unions in the single most radical left-wing union in the nation.

In a 1993 Minnesota Law Review article, which Becker wrote as a UCLA professor of law, he argued that "traditional notions of democracy should not apply in union elections." He went on to argue that those pesky employers who pay the bills should be barred from attending NLRB hearings about elections, and from challenging election results even amid strong evidence of union misconduct. He believes that in already-established union shops, internal elections should be held far from the work-site and held on "neutral grounds" and/or by mail-in ballots. I am personally familiar with the opportunity for fraud in that suggestion since I represented a major retailer in San Francisco who had photos of the winning union candidates taking the ballots boxes home, unsupervised, in the trunks of their personal automobiles. I lost the argument at the leftist-dominated California Labor Board, and the retailer decided not to appeal, opting instead to get its revenge at the next contract negotiations (I can proudly say that I gleefully watched the company getting that revenge).

Becker has said bluntly that he is willing to push NLRB discretion as far as possible, and way beyond its current limits, to tilt today's labor rules in favor of easy unionization followed by determining that all employer input disagreeing with any act of those unions is an unfair labor practice (the "catch-all" charge against employers). Becker doesn't want to mute employer rights and opinions, he wants to eliminate them entirely.

If card check is not approved by Congress as a solo issue, they have a backup. The alternative legislation appears on its face to be slightly less pro-labor than simple card check, but it is equally insidious and with Becker on the Board, all decisions would be favorable to a very dangerous exercise in regulatory power. Under the proposed law, the procedure for contract negotiations would be altered drastically. If a contract negotiation doesn't work out well now, both parties have equal access to the Board, and if there has been an agreement to extend negotiations past the expiration of the contract, both sides are free to declare the negotiations to be fruitless and submit the issue to the Board for determination of whether a strike will be allowed under the National Labor Relations Act (NLRA).

The proposal changes this arrangement so that after 90 days of negotiations in which the union makes increasingly outrageous demands that the company rejects, the Board can impose its own version of the contract on the parties without the input of either the company or the vote of the rank-and-file membership of the union. With Becker on the Board, the union bosses will always be right, and the Board's undemocratic contract will always be just perfect. Both the company and the rank-and-file will take it in the shorts, and the union bosses will get exactly what they want every time. With a new, less aggressive moderate Democrat on the Board, the current law would leave it up to the Board to decide both whether a strike is yet in order, and/or if the proposed contract truly represents the will of the rank-and-file.

But in no event under current law can the Board simply write its own contract. It can propose, but it can't impose. It can cajole, and even threaten, but it can't write the contract. The backup legislation destroys this relationship. Becker's declared intention to use the NLRB to advance his radical agenda guarantees that the result will always be in favor of the union and the union bosses and that the contract will always be the one written by government bureaucrats. It would also remove any incentive whatsoever for the union bosses to negotiate in good faith, defeating the very purpose for which the NLRA was written in the first place.

Scott Brown has stated his opposition to the appointment, and wishes to follow the advice of The Journal and the National Right to Work Foundation by asking in the public hearings "why someone who wants to rig the rules to favor unionization should sit on a panel that is supposed to enforce fairness in union elections." Let us hope that he will have arrived in full Senatorial mode in time and in sufficient strength to turn back the tide of a favorable Senate vote on the nomination. His demand that the Democrats in Massachusetts get off their duffs and certify him to the Senate is meet and proper, and I hope that by the time you read this, he will already be in the Senate, in full battle armor.

17 comments:

StanH said...

The raging arrogance of these people is nothing less than breathtaking. In their stupidity of all things business, they could do more damage to the working class, that’s never been seen, before or since. I’ve been in the room more than once, when a business was being forced to unionize and the decision was made to close the company down stateside, and move overseas…”if you can’t beat’em - join’em,” attitude. Downward pressure on manufacturing (due to China, Mexico, etc.) in the past thirty years have put the profit margins next to nothing, try to impose unions on business, and it will be ugly for the remaining American jobs. The looters, and the moochers, will run the producers off, another illustrative metaphor, the parasites will finally kill the host! WOW!

AndrewPrice said...

They've been jamming every agency they could find full of labor hacks. People were wrong about Obama being an Alinsky disciple, he's a union stooge.

patti said...

just when i think i have reached my anger limits, i read something like this and POW! seems that there is no end to their arrogance and determination to do what they deem as fit for them at the expense of america as a whole.

this truly will be a fight to the end of this administration; we must be vigilant on every front.

great article.

Writer X said...

LawHawk, thanks for posting this. As usual, it's not been reported very actively by most news organizations. All the more reason to be suspicious.

LawHawkSF said...

StanH: "Raging arrogance" is probably the best description I've heard yet of this administration and its allies in Congress. Most viruses only make the host sick, in order to preserve their own existence. The Obama virus is like ebola, it kills both the host, and ultimately, itself.

LawHawkSF said...

Andrew: It's amazing, isn't it, how Obama can appoint these horrendously bad people, and just when you think it can't get any worse, it does. Becker is worse than most (one step away from a Van Jones) because he's smart, doctrinaire, and simply doesn't care about procedure, democracy, or the will of the people. There's a good chance he'll be confirmed, but at least we're getting the warning out.

LawHawkSF said...

Patti: The truly sad part is that they do what's best for them (at least in the short-term) solely because they are so wrought up in their crazed doctrines that they believe it is what's best for America. It's like Randian philosophy after it's been put through a cuisinart.

The price of liberty is eternal vigilance, and this administration is proving that, in spades.

LawHawkSF said...

WriterX: Wherever and whenever possible, we try to cover an event in full, and in the process we occasionally catch twists that more traditional sites miss. The blogosphere has been on this story for some time, but the necessity for the push to get Brown in place is at least somewhat better explained when you know about all those currently pending Board decisions which will be cast in concrete if Becker is installed in office quickly and can get all the pro-union decisions voted on favorably. Brown and the Republican leadership were sharp enough to pick up on what the real game was, and I commend them.

HamiltonsGhost said...

Lawhawk--Bureaucracies and regulations are bad enough. When they're determined to undermine the will of the people, they're even worse. Becker is a doctrinaire labor unionist, and a danger to the democratic process.

LawHawkSF said...

HamiltonsGhost: You have it right. And this nomination is among the worst. Unlike say, a Van Jones, what Becker does will have the force of law, and it is extremely difficult for the Congress either to monitor or undo his actions. As I mentioned earlier, he's very smart, and that makes him even more dangerous.

He's a successful litigator and a former law professor (a real one, unlike his ultimate boss), and he knows how to manipulate the law and the regulations to suit his purposes. He is clearly of the ilk who "know what's best for us," and that includes the unionization of every single worker in America, whether they like it or not. He believes in the "living Constitution," and knows how to write rules and enforce decisions which ignore both original intent and original wording.

CalFederalist said...

LawHawk. Here in California, a union member (only through his union reps, though) can choose arbitration through the state labor board or the federal labor board, particularly when the issue is those unfair labor practices you mentioned. Would Becker's appointment cause most of them to choose the federal board?

LawHawkSF said...

CalFed: Each state will be different, so this answer applies largely to California and those states where labor and the Democratic party are in charge currently.

There would probably be no change at all in California at first. The current labor board is heavily pro-union, and always cites the federal law as well as state law in its decisions. That means most will continue to go to the state board since there are many more offices, the arbitration procedures are simpler, and the local unions are cozier with the local arbitrators. For the sake of argument, if California suddenly had a Republican landslide, and several openings at the state board level, the dynamic might change. And even at that, if a state board is pro-business (or the claimed goal, neutral), and issues a ruling that contradicts provisions of the NLRA, the federal board or court will make the final decision anyway. There's that federal supremacy "preemption" doctrine again. Another reason to declare collective bargaining unconstitutional, but don't hold your breath on that one.

Tennessee Jed said...

Great post, Hawk. This may turn into one of those litmus test issues {sic} how did candidate X vote on the Becker nomination?

Of course I was appalled that the temporary custodian was still voting (the debt ceiling vote) even when it was apparently illegal. There was no Republican stink about it so maybe the votes weren't there to defeat it anyway.

I am probably as ardently anti-union as Barrack and Becker are pro-union. Growing up around Philly, unions always represented thugism to me.

Big Labor is like government healthcare. The dogs don't like the dogfood, but The Labor/Socialist Party (oops, I mean the Democratic Party) is determined to foist it on us. The presence of unions in government sucks, nothing less. I was always incredibly glad we were able to keep unions from gaining a toehold in the insurance industry.

LawHawkSF said...

Tennessee: I've had a visceral distaste for unions most of my life. Industrial unions served a genuine purpose from about the time of the Civil War through perhaps as late as the early FDR years. Now we are stuck with them, and the majority of union workers who aren't in the heavy industries. The SEIU particularly is a cancer on the body politic, and represents people who are as replaceable as your dirty underwear. But just try to replace one of them and see what happens. And many of them are here illegally.

The sector that makes me want to become a bomb-throwing capitalist is the public employee unions. They not only get civil service job protection, but then they get to join a union, making them nearly impossible to get rid of (we've all seen how efficient these former "public servants" are). They start with the "prevailing wage" for jobs in private industry, then negotiate the price upwards. That's a lie heaped on top of a pile of lies. There is no comparable private industry, because no private company could survive long with deadbeats like the public servants working for them.

In San Francisco, the average City file-clerk earns $52,000 per year (not including the outrageous sick time, comp time, numerous holidays and bankrupting Public Employees Retirement System). The average file-clerk (in what few inefficient companies there are left that use file-clerks) makes $20,356 in the private sector, and it's only that high because San Francisco has a minimum wage that's $1.79 per hour higher than the state minimum wage. And that assumes a 40 hour week, which is rare in the private sector, but guaranteed for the City employees.

LawHawkSF said...

UPDATE After a motion for reconsideration on the Becker nomination, the special committee vetting him reversed the earlier favorable 15 to 8 committee vote. Unfortunately, the second vote still reported the nomination out favorably to the full Senate, but this time the vote was 13 to 10, a substantial change given the political makeup of the Democrat-controlled committee. Lisa Murkowski (R-Ark) and Mike Enzi (R-Wyo), ranking member, brought the motion, and each then voted against the nomination after this public outcry.

The two were able to bring the nomination back for a vote on the grounds that Becker's ethics disclosure paperwork was out-of-date, a requirement for confirmation. The new vote was along strict party lines, all Republicans voting "no." Too bad it took this long for the will of the people to become apparent to the two former "yes" Republican voters.

Enzi also made a statement about his disapproval of the Democratic majority's stall on Scott Brown which resulted in the confirmation of another, earlier unqualified nominee, Patricia Smith, along strict party lines by a filibuster-proof 60 to 32 vote of the Senate. Scott Brown's confirmation and the exit of his predecessor two days earlier would have brought the Democratic majority down to 59--not filibuster-proof.

HamiltonsGhost said...

Lawhawk--Does the favorable vote from the committee mean that the full Senate is ready to vote the nomination up or down?

LawHawkSF said...

HamiltonsGhost: The simple answer is "no." The committee vote is still contingent on the production of the revised and current ethics paperwork. That alone could take weeks. When it is produced, the committee can choose to re-investigate or turn it directly over to the full Senate. Either way, there's now going to be considerable debate and ongoing vetting.

The political landscape is changing dramatically for Democrats in "up-for-grabs" districts, and they no longer have their filibuster-proof majority. Much will change between now and then, including my guess that Becker may be forced by the administration to withdraw his nomination for "personal reasons" rather than face a full, public and angry debate over his confirmation. God love Scott Brown, the tea party movement, and the American people.

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