Why the Republican Filibuster of Craig Becker is Ridiculous

The filibuster of Craig Becker as a National Labor Relations Board member is patently ridiculous. There, I said it. While conservative activists are stretching and twisting and creating new, ludicrous reasons to oppose his nomination, their activities are historically ridiculous. To give some background, Craig Becker is a long-term labor lawyer who currently works for SEIU, the Service Employees International Union and the largest union in the country. The opposition to Mr. Becker can be broken down into the following categories:

1)He works for labor, therefore he’s biased.
2)In scholarly articles, he postulated that management should have no role in union organizing campaigns.
3)He will pass the Employee Free Choice Act by proxy.

I may be missing some specific points but these are the three major criticisms of Becker and the main talking points about his filibuster. On the whole, all three are more ridiculous than the next and, by disproving each of them, we can reveal the real reason for this filibuster.

He Works For Labor, Therefore He’s Biased

Sherrod Brown got this one right on the money when he said in his floor speech that the pattern of NLRB appointments have been pro-labor types for Democrats and pro-management types for Republicans. There is an abundance of literature on the “fox in the hen house” theory of NLRB appontments and this pattern has intensified over the past 20 years. I’m even currently in the process of writing a scholarly article criticizing the NLRB for this exact reason. But regardless, it is extremely hypocritical for Republicans to start complaining about this process now after the abomination that was the Bush Board .

For example, the Chairman of the NLRB during the Bush era was Robert Battista. Battista was a long-time management attorney who has recently taken a job with Littler Mendelson , one of the most notorious anti-union management firms and one of the two leaders in union-avoidance (a.k.a. Union busting) tactics. Battista ruled over the NLRB with a similar type of anti-union animus and gave labor a kick in the pants whenever possible, even with a decision hurting union solicitation rights via e-mail on his last day in office .

The fact is that there is nothing out of the ordinary for a Democrat to appoint a labor lawyer with ties to labor. In fact Obama’s other appointee is also a union-side labor lawyer, although he works in private practice. There just aren’t a lot of jobs in “neutral” settings in labor law outside of government positions, and most government labor attorneys are more likely to be sent down the path of supervisory roles in the NLB than Board positions. The theory of unbiased Board appointments is bunk.

He Wants to Keep Management Out of Organizing Campaigns

I haven’t read a lot of Becker’s scholarly articles so apologies if I’m unfairly characterizing his statements. My understanding here is that the articles in question state that management should be completely uninvolved in organizing campaigns. What’s shocking to me here isn’t that this was said, but that this is somehow a controversial idea in the first place.

When you look at the National Labor Relations Act, it becomes quite clear that this is a pro-union bill. The entire purpose of the Act is to promote collective bargaining. Protections are given for concerted activity and most of the strict interference violations are directed at management (while the main labor violations are more oriented towards unlawful picketing). In fact up until the 1970’s, the Act was doing quite a good job in its purpose to guarantee workers the right to organize and collectively bargain.

So what happened? Ronald Reagan. The PATCO affair and the termination of striking air controllers sent a message to management that it was ok to bust your union. Since then the rate of unionization have dropped dramatically and the rates of unfair labor practices against management have increased as well. Management slowly realized that they could incorporate unfair labor practices with the cost of doing business, especially considering that the penalties are quite limited by the statutory language. Over time, the union-busting business has boomed and is now a large component of management-side labor practices.

So is it controversial to say that workers should be allowed to choose whether or not they want to join a union without facing the pressures of management? If it is, I’m not seeing it. Now, let’s be clear; no one would support labor coercing or lying to workers. That’s the reason management was given a voice in the first place and why the language in the Act focuses mostly on truth-telling (statements of fact instead of speculatory gossip). But the argument that management’s role in organizing should be limited is not controversial, especially when it comes from an attorney with 20 years working on the side of organized labor.

He’ll Pass the Employee Free Choice Act by Proxy

This is a creative argument made up by the Chamber of Commerce and everyone’s favorite anti-union website, “The Truth about EFCA”. For those of you not in the know, EFCA is a pro-labor amendment to the National Labor Relations Act that would make it easier to organize, guarantee a first contract in case of lengthy contract disputes, and increase penalties for unfair labor practices. There’s been a lot of ink already used about the “card-check” organizing provision and I won’t go into those details here.

The idea in this context is that by having a pro-labor Board, Obama will pass EFCA “by proxy”, or through Board decisions. There are two problems with this argument. The first is that the provisions in EFCA are statutory changes, so the Board really can’t pass it by proxy. While there have been determinations relating to card-check in the past, those decisions only relate to voluntary approval by management and are contested by minority employees who don’t support the union. The statutory language of Act says that an election will happen if the employer doesn’t voluntarily accept the display of union approval by cards, so there’s nothing the Board can do on that subject. Similarly, the Board can’t extend greater penalties than what’s listed in the Act. And it certainly can’t create a new arbitration process that flies in the face of collective bargaining provisions in the Act.

The other problem is that there’s no reason that Craig Becker would be more likely to “pass EFCA by proxy” than any other Democratic nomination. This goes back to what Sherrod Brown said. Democrats appoint pro-labor Board members and Republicans appoint pro-management Board members. There is a pendulum affect in labor law on the basis of Presidential parties. Republicans are therefore left with two choices; continue to block the Board from a 3-2 Democratic majority or accept the fact that most Obama nominees will be similar in character and support those who are well-versed in the field (which Craig Becker certainly is).

It becomes apparent that this strategy is nothing more than a time-waster. The goal is to limit the years of an Obama Board so that labor can’t reverse the string of anti-union Bush Board decisions. Even if Obama makes recess appointments, those terms run shorter than the traditional 5 year NLRB term and will elapse if Obama loses the 2012 nomination. This isn’t a problem with Craig Becker. This is an attack on organized labor and the functionality of the National Labor Relations Board. This is a continuation of Republican Total Warfare on our government.

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