Though we blogged about this back in June, pointing out the errors in NLRB-member Craig Becker’s logic, the Washington Post on Monday added a new twist to the former SEIU’s general counsel’s refusal to recuse himself:
Republicans and anti-union groups are demanding that a new member of the National Labor Relations Board recuse himself from cases involving chapters of the union he used to work for, a continuation of the fight that surrounded his nomination.
The National Right to Work Foundation sent a letter to Attorney General Eric H. Holder Jr. last week, requesting an investigation into Craig Becker’s decision to hear cases involving local chapters of the Service Employees International Union. Becker worked as an associate general counsel for the 1.8 million-member union and the AFL-CIO before his appointment by President Obama in March.
In a footnote to a June ruling, Becker stated that in keeping with the Obama administration’s ethics policy, he would recuse himself from any cases in which the SEIU or the AFL-CIO was a party. But he would not recuse himself from cases involving an SEIU chapter, because the SEIU is a “separate and distinct legal entity” from its affiliated locals.
[snip]
“There’s clear reason to question Becker’s impartiality,” said Issa spokesman Frederick Hill. “His former employer, SEIU International, tightly controls its local chapters. With such gaping loopholes, the Obama administration's ethics pledge Becker signed isn't worth the paper it was printed on.”
[snip]
Also voicing concerns, though, have been the former leaders of a 150,000-person SEIU chapter in Northern California that broke away to form its own union last year and is now engaged in a battle to reclaim its former members. Leaders say that the distinction between the SEIU and its chapters is blurred when the national union takes control of a chapter, as occurred in their case.
Becker has anticipated this argument: In a June memo that elaborated on his recusals, he included the California dispute as an issue he would recuse himself from. But he said his recusals would apply only to disputes from the California fight that arose before his joining the board in March. Depending on the interpretation, this might allow him to rule on disputes that are likely to arise in the future, with a showdown election over 45,000 Kaiser Permanente workers approaching next month.
“It’s an artificial construct,” said John Borsos, one of the breakaway union leaders. “Either one is enmeshed in these issues or one is not..”
[snip]
SEIU spokeswoman Michelle Ringuette dismissed the recusal dispute. “It’s another way the right wing is trying to politicize something,” she said. Stanford University labor expert Nelson Lichtenstein called the uproar contrived. Obama picked Becker, a pro-labor voice on the board, just as Republican presidents nominate pro-business members. The recusal demand is just a way to reduce Becker’s influence, he said.
We’ll have to wait and see if the addition of union members to the call for Becker’s recusal will put more pressure on Attorney General Holder’s deliberations of whether or not to investigate.
We may be waiting a long time though.
Read the rest @ Washington Post.
One reason the Right is always setting the agenda, and liberal and progressives fight rearguard actions is the Right’s gift for making sensations of non-issues (like the birther controversy). Once again the Right has pushed a non-issue to the fore and people are debating the ethics of a conflict that doesn’t even exist.
This is a case in point.
1. The Boeing case is before an Administrative Law Judge (ALJ) at ULP the hearing stage. The ALJ hasn’t reached a decision. So there has been no appeal of the ALJD to the Board.
2. Even if there is an appeal, whether Becker will be on the case’s subpanel can’t be known at this point. Assuming the Boeing case is appealed from the ALJ to the Board, it will go to a randomly generated subpanel chooser. The system will pick 2 of the 3 Dem Board members and a Republican – Hayes. The case’s subpanel may not even include Becker.
3. When Board Members or Board staff counsels get cases with potential conflicts, they generally opt out or at least get advice and clearance from the agency ethics counsel. I know of no instance where a Board Member simply bulled ahead and took a conflicted case. Failing to do so risks federal criminal charges and state bar discipline.
4. The ethics rule is simple; you can’t work on cases involving former clients. If you worked for one union, you can work on cases involving other unions. If you worked for the union’s International you can work on cases involving the union’s locals. When I was at the Board (after getting clearance from the agency ethics specialist) I worked on cases involving union locals of unions like UFCW even though I had worked for the pensions and benefits funds of those same international unions. Why no conflict? Different entities.
5. The union in the Boeing case is the IAM. Becker worked with SEIU. IAM wasn’t his client, no conflict.
6. These rules have been followed by Democrats and Republicans alike. I had an R-case in which Liebman (a former Teamster’s lawyer) knew or worked with one of the officers of a Teamsters local involved in a Board R case. She recused herself. I think Schaumber recused himself in a case because his wife owned stock in the company involved in the case (Walmart?). I am confident Becker would recuse himself if a real conflict existed.
7. The ethics rules have a practical angle – the prevent direct conflicts of interest but allow attorneys who worked on the union- or management-side prior to coming to the Board to hear cases involving union and management (which all Board cases do). Board Members and staff attorneys nearly all come from labor law backgrounds, management-side or union-side. If merely being a union-side or management-side counsel in the past was enough to conflict-out Board attorneys, almost no one at the Board would be able to handle cases.
The Obama Board, Boeing, and Becker are like chum for the GOP, they send the sharks into a feeding frenzy. What better way to create a frenzy than inventing an issue that involves all three?