Friday, July 23, 2010

We Told Ya--Becker Flexes His Union Muscles

Back in February I discussed the Republican Party flexing its "new found muscles" here. At that time, Scott Brown had just taken over the seat of Ted Kennedy, and among the first votes he participated in was the thumbs-down vote on Obama appointee to the National Labor Relations Board Craig Becker. Thanks to a recess appointment in March, Becker took a seat on the NLRB anyway.

Now it's Becker's turn to flex his muscles. And it's all payback. The man has the ethical backbone of a jellyfish, but he is determined to sting. So let's start with his oath of office and written ethical pledge: "I will not for a period of two years from the date of my appointment participate in any matter involving specific parties that is directly or substantially related to my former employer or former clients, including regulations and contracts."

Maybe Becker thought the declaration said "two days" rather than "two years." This is the man who said that he would institute union card check with or without Congressional approval and declared that employers should have no voice in discussions of whether their employees should join a union or not. More importantly for this discussion, Becker was the chief counsel for the Service Employees International Union (SEIU) less than a year ago, and a paid consultant to the AFL-CIO at the same time.

Now comes the so-called "Pomona Valley Case." Becker boldly refused to recuse himself in accordance with his ethics pledge in a matter which revolves entirely around the SEIU. Here are the basic facts. Carole Jean Baderscher is (was?) a nurse at Pomona Valley Hospital Medical Center in California. In order to retain her job, she was forced to join the SEIU. When the union contract expired, the SEIU voted to abandon their patients and go on strike. Baderscher took her nurse's oath more seriously than her forced union membership, resigned from the union, and went to work.

The SEIU retaliated by threatening Baderscher with prosecution under an ancient and inoperative California law called "The Professional Strikebreaker statute." The law was originally written to stop paid professional "union-busters" from interfering with union activities. Even if that law had not been preempted by federal law over many decades, Baderscher would not even come close to fitting the description of a paid union-buster. She simply left the union (in complete compliance with Beck v Communications Workers) and crossed the picket line to care for her patients.

Well, at least the SEIU thugs didn't beat her to a pulp, but they used forced union dues to make her life hell. The told Baderscher that she and her fellow nurses who refused to abandon their patients would be fined, barred from employment with any hospital suffering from a union contract, and thrown into jail. They also twisted the words, intent, and precedent which Beck stands for, and told the nurses that they were legally required to keep paying union dues. In fact, Beck makes it clear that while there is a union contract in effect (which is not the case here), those who opt out of the union are required to pay only that portion of union dues related to very narrow and specific purposes. Leftist labor boards have consistently ignored those Beck rules despite losing nearly every court case in which the National Right to Work Foundation filed suit against the unions and/or labor board rulings.

The liars and thugs of the SEIU produced a pamphlet using union dues (in direct violation of Beck law) which said to Baderscher and anyone who might be considering joining her: "You may have been mislead [sic.] into believing that you are not obligated to pay dues and fees during the period of negotiations. This is untrue and retroactivity may occur prior or upon ratification of the contract. Please ask yourselves why all the anti-SEIU leaders are still paying dues. Could it be they don't want the possibility of owing more in a lump sum?" Not only is that a misstatement of law and a pure bullying tactic, but in addition the use of union dues to produce the pamphlet is a clear and unequivocal use of union funds for a purpose specifically forbidden by Beck.

All right, that's the case. And who is actively involved in reviewing the matter? You guessed it, SEIU advocate and recent former SEIU counsel, Craig Becker. He didn't wait two years or even two months since his recess appointment to declare brazenly that he fully intended to participate in this and any case which involved the SEIU. This is not some abstract nexus between a pro-labor NLRB member and some obscure union. This is the former counsel for the SEIU involving himself directly and enthusiastically in an SEIU labor dispute. Frankly, I've been involved in many labor-management disputes and matters involving conflict of interest/incompatibility of office, and I have never seen such a clear and egregious violation of a written and signed ethics pledge.

On the other hand, we're dealing with the Obama administration and the SEIU, so why I'm even discussing ethics is somewhat of a mystery, even to myself. Here's Becker's defense to pending ethics investigations: "It would be appropriate to recuse myself from cases involving the national SEIU but not cases involving the local chapters because they are 'distinct legal entities.'" That is based on an earlier NLRB ruling, written by, you guessed it, Craig Becker.

So what does the SEIU charter have to say about national versus union locals? "The national union has jurisdiction over its affiliated bodies and all Local Unions." In his decision to go forward with the Pomona Valley case, Becker seems to be ignoring his own words. In that earlier ruling which he wrote, Becker said: "Employees [of the administration and/or NLRB] shall endeavor to avoid any actions creating the appearance that they are violating the law or ethical standards. Whether standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant fact."

Well it sure as hell appears to me that Becker is in clear and open defiance of that statement. But then I guess Becker would say I'm unreasonable. And unlike cases that I argued in court, I didn't get to conclude my argument, then head up and onto the bench to make the decision on my own arguments. But that is exactly what Becker is doing. Does anyone still wonder why Andy Stern, longtime head of the SEIU was the most frequent overnight guest at the Obama White House?

19 comments:

Joel Farnham said...

LawHawk,

And liberals wonder why we conservatives are nervous when they get into power?

Are there any ways to remove Becker from this case? Or is a foregone conclusion that he will rule against the nurse?

StanH said...

I love you guys articles, but some time they just piss me off : (

Becker is a recess appointment, and can only serve until January 20, 2011, where he’ll either get another recess appointment, or as I pray, the new (conservative) congress takes over and will deny his appointment, and or funding? Either way it seems that Barry and his minions, will be a challenge until he is gone…just WOW!

AndrewPrice said...

Once again, the Democrats push politics into something that had supposedly been non-political in the past. I hope the Republicans are finally figuring out that you just can't keep treating any position with the government as apolitical. It's time to start appointing people to every position you can get who will actively undo the Democratic agenda.

Tennessee Jed said...

Hawk, as I read this, I couldn't help but think about how bad government has gotten. On the one hand, Becker is somebody that is so easy to loath without, as you point out, any ethics. On the flip side of the equation is the problem of how politics seems to render almost everything difficult to do.

By that I mean I remember how frustrated I was when the Dems held up John Bolton and just about every other appointment Bush tried to make. I guess the question is where does concrete vetting end and political game playing begin. I realize that as professional spinners, politicans and their staffs can almost cloak whatever egregious action they take in a mantle of semi-legitimacy.

It seems to be too bad there are some better spelled out rules around the whole vetting process.

Patti said...

i'm with stan: your articles not only serve to educate me, they also tick me off. these dems are not going quietly. i wonder what the country's gonna look like in three months? lord, have mercy.

LawHawkRFD said...

Joel: The procedures are all there for his removal after an ethics investigation. But as we've said before, "who will guard the guardians?" It's a lengthy process, and it's in the control of the Democrats, most of whom are terrified of losing union support. I don't see this situation getting any better until the union stranglehold on Congress and the executive branch is broken. Becker is daring the powers-that-be to do anything about his complete disregard for rules, precedent, pledges, and common decency.

The truly sad part is that during the hearings, it became documented that he would do exactly what he is now doing. His big boss wants the Constitution and the rule of law to get out of the way of "progress," so why should we expect any less of his employees?

LawHawkRFD said...

Stan: There was a time that I would have said that after this kind of bad publicity, the president would not repeat the offense. The past few weeks have indicated to me that Obama has absolutely no regard for any of the institutions that effect the rule of law. He also seems to be deaf, dumb and blind to the will of the people or even political sanity. He'll do what he wants to do, and we'll spend years cleaning up the blood he leaves in his wake.

LawHawkRFD said...

Andrew: So true. None of us who have been around politics believe that appointees come to their administrative positions devoid of their own opinions and agendas. The more activist ones (left and right alike) will occasionally bend the law almost to the breaking point to move their agendas forward. But there comes a point where a change in form becomes a change in substance, and Becker is it.

He openly said he would ignore the Constitution and act with or without Congress to implement his worker's paradise plans. I'll give him this--he's keeping his promise. He doesn't even pretend that he has the Constitution, the law, or the will of the people behind him. But he does have his Marxist bible, and that's good enough.

Individualist said...

So Lawhawk

I guess after you are successful in promoting the idea of a "living" constitution that from there you go to the idea of "living" laws.

Why don't we dispense with laws all together and just have judges that are "good" people. And who decides who the "good" people are, well Barry O and his troop of social progressives of course.

LawHawkRFD said...

Tennessee: Politics and democracy are messy businesses, and that's an unfortunate fact we have to live with. As Churchill said, "democracy is the worst form of government, except for all the others."

Last Monday, I discussed the Bolton recess appointment versus the Berwick recess appointment as the head of Medicare Services. There, the difference was that Bolton was fully vetted, and rejected by the Senate. Bush then made the recess appointment. Berwick never came before the Senate, nor did he even submit to questioning by Senate investigators. Then Obama recess-appointed him without any hearings.

In this case, like the Bolton appointment, Becker was fully vetted and rejected by the Senate. But unlike the Bolton appointment, Obama recess-appointed a man who was rejected by the Senate because his views were so radical and so defiant of the law that he was unacceptable. Bolton was rejected because the Democrats didn't like his politics (or his mustache), but there was never any argument that Bolton intended to ignore the law and write his own rules.

Obama promised us change, and he's delivering on his promise, much like Becker. The change is that Obama is substituting personal rule for the rule of law. And in keeping with that pattern, he appointed the lawless Becker to the NLRB.

LawHawkRFD said...

Patti: I don't see anything that makes me think that things will get better as long as Obama and the Democrats are in power. But like Pandora, I'm always looking for that remaining hope. And I think it's a reasonable one. Obama and the leftists have pushed so hard that now there's major pushback. We may not be able entirely to stop the march down the road to serfdom during the Obama tenure, but we're beginning to slow it down considerably. For instance, it looks like Cap 'n Tax is not going to happen during this Congressional session. There's a lot of talk about a lame-duck Congress ramming through more socialist legislation, but I don't think it's going to happen. Blue dog Democrats always harbor the thought that even if they lose in this upcoming election, they can make a comeback in the following election. They know if they ram more big government, statist, bureaucratic, spendthrift, tax-us-to-death legislation through in a lame-duck session, they will never get elected again.

On the administrative appointment side, I don't think anything is going to stop the Messiah from doing exactly what he thinks is right. He may yet set records for recess appointments, particularly of those people who are just too radical and agenda-driven to pass muster even in a somewhat liberal Senate.

LawHawkRFD said...

Individualist: That's a nearly perfect description of the pure bureaucratic state. It's exactly what the social-welfare crowd wants, even if they don't articulate it as well as you did.

It is also the diametric opposite of what the Founders wanted and the Constitution implements. Obamism is top-down arbitrary rule. The Constitution is bottom-up democratic rule with Constitutional restraints. The concept of rule of the technical elite versus the concept of ordered liberty and a government of the people, by the people and for the people.

LawHawkRFD said...

I should add to this dismal news by letting everyone know that Harry Reid is going to try to use some more parliamentary tricks to get the execrable DISCLOSE act passed as further repayment to the unions. In case you don't remember, this is the proposal for full disclosure of everything, everybody and every irrelevancy that would be required in a political ad which criticizes the administration, Congress, or, wait for it, big labor. Somehow it's worded so that businesses and corporations would be back in the situation they were in prior to the Supreme Court ruling in Citizens United, but labor would be exempt from many of the provisions of disclosure. Think of it this way--in any one minute political ad, businesses and corporations would spend 50 of the 60 seconds listing their contributors, but labor could accomplish the disclosure with one two-second disclosure of "paid for by Local Union XXXX."

The subject of today's post, Craig Becker, no doubt played a major role in drafting the legislation, but since it would affect his cronies in labor, we'll never see that revelation of conflict of interest or incompatibility of office.

HamiltonsGhost said...

Lawhawk--There's a surprise. Reid doing something sneaky. Who'da thunk it?

LawHawkRFD said...

HamiltonsGhost: I know what you mean. It's hard to believe of the most ethical Congress and most transparent administration in all of mankind's history. LOL

LawHawkRFD said...

UPDATE: I wrote a post earlier this week about the University of Illinois, Urbana-Champaign, firing a professor for doing his job (University Officials Act Like Kindergarteners). The Alliance Defense Fund wrote a demand letter telling the University to re-hire the professor or face a lawsuit. In kindergarten fashion, assuming only liberals are intelligent, the administration has responded by claiming the professor was not fired, he merely has no classes to teach now. Talk about a distinction without a difference. So that means the still employed professor is an instructor of, well, nothing. And if he doesn't instruct, he doesn't get paid. Is the professor supposed to be honored by the empty title he retains, at least according to the university administrators. ADF did not accept the reply as adequate, researched the administrative law cases, and concluded that if the university doesn't quit diddling around like the morons they are, the Fund and the professor can go straight to court without having to demand an administrative hearing first. I'll keep you posted.

CalFederalist said...

LawHawk. God help us all if they have a vacancy on the Civil Rights Commission. Obama will recess appoint his old friend Jeremiah Wright.

LawHawkRFD said...

CalFed: I wish that sounded far-fetched. But it doesn't.

Doc Whoa said...

Unions were necessary once, but not anymore. Now they're just corrupt moneysucking ruiners of business.

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