Sen. Hatch Seeks Answers from NLRB’s Becker on SEIU Manual

It’s almost given that a Democratic member of the National Labor Relations Board (NLRB) has at least some background as a union lawyer. Craig Becker, who long had been associate general counsel for the Service Employees International Union (SEIU) before obtaining a recess appointment to the board by President Obama in March 2010 following a Senate GOP filibuster, fits the pattern. But he also may have gone that extra mile, helping to prepare an SEIU manual on how to intimidate employers. Sen. Orrin Hatch, R-Utah, wants to know more. On September 12, Hatch wrote a letter to Becker asking him to clarify what role he had, if any, in drafting the document. As Becker is up for Senate approval for a full-term appointment to the (normally) five-member NLRB, his response – or lack of it – may affect the course of board rulings for years to come.

On paper, Craig Becker is exceedingly qualified for a position on the NLRB. A Yale Law School graduate, he has taught law at Chicago, UCLA and Georgetown and has argued various cases at the U.S. Circuit and Supreme Court levels. But his union advocacy is aggressive even in comparison to many Democrats on the board through the years. Far from being an impediment to his nomination by President Obama back in April 2009, such a perspective proved an asset; he already had served on President-Elect Obama’s transition team in December 2008. But what was a plus with the new administration proved a drawback with Republican lawmakers. John McCain, R-Ariz., a member of the Senate Committee on Health, Education, Labor and Pensions, placed a hold on his nomination after the committee had approved Becker by 15-8 in October 2009, thus indefinitely blocking a floor vote. In February 2010, the committee again voted to approve, this time by a 13-10 margin. In the full Senate, Republicans, though by now well outnumbered, had enough clout to mount a successful filibuster; Becker’s supporters were eight votes shy of the necessary 60 votes to invoke cloture. But President Obama made Becker a temporary recess appointment, good through the end of calendar year 2011.

Opponents of the nomination had good reason to be skeptical. For one thing, Becker had written a 1993 article for the Minnesota Law Review, “Democracy in the Workplace: Union Representation and Federal Labor Law,” arguing that employers ought to have no cognizable interest in the outcome of union organizing drives and elections. In his view, unions have the right to force neutrality agreements upon private-sector employers even more than at present so as to muzzle potential opposition to organizing tactics. Moreover, he maintained, union representation should be forced upon recalcitrant workers. “Just as U.S. citizens cannot opt out against having a congressman,” he wrote, “workers should not be able to choose against having a union as their monopoly-bargaining agent.” Becker has not repudiated such views.

It makes sense, then, that Craig Becker long had served as associate general counsel for the SEIU prior to joining the NLRB. The union, which now claims more than two million members, under President Andrew Stern regularly used extra-legal organizing tactics to win contracts. The international union and various locals also were immersed in radical politics. Becker was especially close to Chicago-based home and health care workers behemoth SEIU Local 880, reorganized in 2009 as SEIU Healthcare Illinois and Indiana. The local had begun some 30 years ago as a project of the now-discredited (and defunct) Association of Community Organizations for Reform Now, or ACORN, affiliating with the Service Employees not long after. Rep. Mark Kirk, R-Ill., and other members of Congress presented solid evidence two years ago that the local had operated as a money-laundering operation for ACORN funds. Becker’s role in the local, as the Wall Street Journal noted in October 2009, was to provide advice and counsel to Illinois Gov. Rod Blagojevich about legislation and executive orders related to collective bargaining. The link between the union and the radical community organizing network worked both ways. During 2005-08 organized labor as a whole donated $8.6 million to ACORN. The SEIU accounted for $4 million of the total.

Becker’s work on behalf of the Service Employees may have extended to preparing an undated SEIU organizing tract called “Contract Campaign Manual.” The online report, exposed this July by the Washington Times in the context of Sodexo’s active racketeering suit against the SEIU, contains a wealth of step-by-step advice on how unions can intimidate corporations to win concessions with such tactics as pickets, strikes, petitions, litigation, stock price manipulation, media campaigns and community pressure. Here’s one nugget of wisdom appearing in the section, “Escalating Pressure Tactics”:

How do you get workers to take action to pressure the employer? And how do you apply pressure in a way that will make management more willing to negotiate?

The key is “escalation” – implementing tactics one step at a time. In the area of on-the-job actions, for example, you can start with something mild like days when all workers wear the same color clothing, move to a one-minute moment of solidarity, then to a work-to-rule campaign where everyone does only the bare minimum required by the existing contract, and finally to some form of work stoppage if needed.

The rest of the manual reads much like this, revealing ways, both clean and dirty, in which unions can induce management to cave into demands. The question arises: Did Craig Becker, whose current job as an NLRB board member requires impartiality of judgment, have a hand in writing this palpably inflammatory document?

Senator Orrin Hatch, at least, thinks he may have done so. He already had raised numerous questions with Becker at the latter’s Labor Committee confirmation hearing in July 2009. This September 12, with re-nomination pending, he wrote Becker a letter asking him to clarify his role in SEIU-sponsored corporate campaigns. Hatch noted:

According to several recent news reports, some controversial documents have come to light in the course of SEIU’s current litigation with Sodexo Inc., including a “Contract Campaign Manual,” which provides details regarding the strategies employed by the union during organizing and contract campaigns. Among other things, the manual explicitly advises union members to engage in tactics designed to attack the reputation of an employer as well as its managers and to purposefully damage an employer’s relationship with vendors and customers. In addition, it advises employees to uncover “dirt” on management officials and publicize the information in order to obtain leverage in contract negotiations. The manual even goes so far as to encourage union members to disobey certain laws when it serves the union’s purposes.

During your initial confirmation hearing before the Senate Health, Education, Labor and Pensions Committee in July 2009, I asked you many questions, both in person and in writing, regarding the use of “corporate campaigns” on the part of unions and organizers. At no point in any of your answers did you disclose your opinion about the propriety of “corporate campaign” tactics or any information regarding your role in advising union members that engage in these tactics. Due to these recent revelations, I believe more information is necessary.

Hatch then asked Becker four questions:

What role, if any, did you play in the drafting or approval of the manual?

Have you ever advised any client to engage in the questionable tactics outlined in the manual, including tactics specifically designed to personally embarrass or intimidate employers or managers, jeopardize employer relationships with customers and vendors, and purposefully disrupt production in the workplace?

Have you ever advised any client that it is permissible to break the law in the course of an organizing or contract campaign?

In your view, are the campaign tactics in the SEIU manual appropriate actions for union members to take in the midst of organizing campaigns or contract negotiations?

Becker knows his likelihood of receiving a full appointment rests on addressing these areas of concern. Senate Republicans, though still in a minority, are in a stronger position than they were the last time around, having picked up several seats in last November’s elections. Moreover, even if he does receive a green light, his ability to shape labor policy is circumscribed by President Obama’s re-election chances. By law, the five-member board must consist of three members of one major party and two members of the other. Becker will remain a member of its Democratic majority, in other words, as long as he has a Democratic boss in the White House.

The National Labor Relations Board, meanwhile, presently has only three members – two Democrat and one Republican. The vacancies were triggered by the term expiration and departure in late August by Chairwoman Wilma Liebman, a Democrat, and the continuing delay in the Senate’s consideration of Republican nominee Terence Flynn. For the time being, Becker, along with new Chairman Mark Gaston Pearce (who has issues of his own), form a potent, if truncated NLRB majority on behalf of union interests. He’ll likely use every opportunity to advance those interests, even if it means dragging out the reappointment process. The board has grown used to operating short-handed.


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