An Obama attorney charged with overseeing labor disputes has resisted well-documented ethical complaints built around potential conflicts of interest with “pure sophistry” and misleading statements that call out for a larger investigation, a foundation opposed to forced unionization has argued.
In a letter addressed to Attorney General Eric Holder, the National Right to Work Legal Defense Foundation (NRTWF) points out that Craig Becker, who now sits on the National Labor Relations Board (NLRB) as a recess appointee, has declined to recuse himself in multiple cases involving his former employers, most notably, the Service Employees International Union (SEIU) and the AFL-CIO.
There is a strong case to be made that Becker’s actions are in direct violation of the ethics pledge he signed in April, the Foundation’s letter states. In the past, he has litigated against Foundation clients and also helped craft legal strategies for SEIU affiliates. Becker has also suggested in his academic writings that major policy changes could be implemented without legislative approval. These controversial views greatly complicated Becker’s confirmation process and President Obama ultimately settled for a recess appointment, which lasts through 2011.
To date, NRTW attorneys have filed over a dozen recusal motions against Becker but he has refused to comply in every case except one. The ethics pledge Becker signed includes the following pledge: “I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.”
Nevertheless, Becker has proceeded to take part in cases involving SEIU affiliates.
On June 3, an NLRB panel that included Becker issued a decision involving St. Barnabas Hospital in New York and SEIU Local 1957. On June 8, another NLRB panel with Becker issued a ruling involving the Pomona Valley Hospital Medical Center in Calif. and Local 121RN. In response to NRTW, Becker has argued that his participation in cases that concern SEIU affiliates do not violate ethical restrictions because the locals are “separate and distinct entities.”
But the SEIU’s own constitution describes local affiliates as “constituent subordinate bodies” of the national union. Furthermore, over 85 percent of the SEIU’s receipts came from a per capita tax on the locals’ membership dues and fees, government records show.
“If Craig Becker’s shaky analysis stands, the Obama Administration’s much-touted ethics pledge clearly is not worth the paper it is printed on,” Mark Mix, the NRTWF president has observed. “Independent-minded workers who dare to challenge the SEIU’s coercive practices deserve a fair hearing, but how can they get that from the very same union’s former top lawyer?”
NLRB Inspector General David Berry did investigate Becker’s participation in the St. Barnabas case but also concluded that the SEIU locals “are considered separate legal entities.” The Foundation has requested that the IG expand his investigation to include the Pomona Valley Hospital Medical Center, which concerned nurses who wanted to end their association with the SEIU local. Thus far, NRTWF has not received any official response. But its letter to the attorney general raises the stakes.
“Only the Attorney General or his appropriate designee has the authority under the Executive Order to investigate any violations of the Obama Administration ethics pledge, which Becker signed,” Nick Cote, deputy legal information director for the NTRWF said. “The pledge explicitly forbids any appointee from involving themselves with a former employer for no less than two years.”
Becker’s arguments do not hold up under close scrutiny the Foundation explains in its letter because they overlook “the deep and interconnected constitutional, administrative, and financial ties between SEIU and its locals, evidence of which to our knowledge was not considered by the NLRB IG in his ruling concerning St. Barnabas Hospital.”
The Foundation’s letter also suggests to the AG that Becker’s recent involvement with cases that impact hospitals should be of particular concern. He has been directly involved with the SEIU’s national campaign for organizing healthcare workers. No less than Wade Rathke, former head of SEIU 100 who founded the ACORN organization, saw fit to lavish praise on Becker. Rathke is quoted as follows in the NRTWF letter:
“For my money Craig’s signal contribution has been his work in crafting and executing the legal strategies and protections which have allowed the effective organization of informal workers, and by this I mean home health care workers, under the protection of the National Labor Relations Act…. Craig was the key lawyer from the beginning in the early 1980’s who was able to piece together the arguments and representation that allowed those of us involved in trying to organize home health care workers in Illinois, Massachusetts, and elsewhere to beat back the arguments that such workers should be denied NLRA coverage because they were either self-employed or tainted by a co-employer
situation where they might be quasi-public employees because they were directly reimbursed. His role was often behind the scenes devising the strategy with the organizer and lawyers, writing the briefs for others to file, and putting all of the pieces together, but he was the go-to-guy on all of this.”
During his confirmation hearings, Becker has also made reference to a separate ethics agreement with NLRB. However, this went unmentioned when he ruled against the recusal requests. For this reason, the Foundation saw fit to raise several additional questions in its letter about the special agreement and its relationship to the ethics pledge.
“Is Becker’s Ethics Pledge properly considered as a stand-alone legal commitment, as stated in the Executive Order? As such, did his decision to participate in the SEIU cases, as well as his refusal to recuse from most upcoming SEIU cases, violate the Ethics Pledge? Did Becker’s “special agreement” somehow make it possible for him to sign the Ethics Pledge despite the obvious conflict arising from his former employment and the terms of the Pledge? Was the “special agreement” an element in Becker’s refusal to recuse himself when SEIU or an SEIU subordinate affiliate is a party? If so, why is it not mentioned in his ruling on the motions to recuse? Did the special agreement override the need for a waiver from the Ethics Pledge?”