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.