Federal Judiciary

The SEIU?s Friendly Inquisitor -- By: Kevin Williamson

Carole Jean Badertscher was a California nurse who just wanted to go to work and take care of her patients -- but the SEIU was determined not to let that happen. The union's contract with Badertscher's employer, the Pomona Valley Hospital Medical Center, had expired, and the union had called a strike in response. Badertscher and other nurses, unwilling to abandon their patients for the sake of a stronger SEIU hand in contract negotiations, resigned from the union and went to work. In turn, she was threatened by the union bosses, who promised to have her prosecuted under California's antique professional-strikebreaker statute, which was long ago pre-empted by federal law. Badertscher and other nurses were told that they would be fined and could be thrown in jail for months.

But there was more at stake in the case for the SEIU than the right to bully nurses in the Pomona Valley. The SEIU local had also informed hospital employees that they were legally required to keep paying union dues. If the hospital's employees stopped paying their dues, the SEIU chapter would be starved of its income -- and it was not about to let that happen. The national SEIU, which takes a piece of the locals' dues, would take a hit, too. So the local SEIU bosses distributed a flyer full of false and misleading information. It read, in part: '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?' Translation: The SEIU owns your paycheck and will come after it.

#ad#When Badertscher sought legal relief from the threats and paycheck-plundering of the SEIU, her  lawyers did not expect to find themselves arguing their case in front of the man who was the SEIU's own chief lawyer until a few months ago, when President Obama named him to the National Labor Relations Board. Craig Becker, former general counsel for the SEIU, was a controversial appointee to start with, owing to his radical and anti-democratic views on union power. But surely, Badertscher's lawyers thought, he'd recuse himself from a case involving the SEIU.

Becker refused to do so. In fact, he was part of a three-member panel that reviewed the SEIU/Pomona Valley case, and he has made it clear that he intends to continue involving himself in cases involving his former employer.

'There are 13 or 14 cases in which we've sought recusal for Craig Becker,' says Patrick Semmens, legal information director for the National Right to Work Foundation (NRWF), which represented Badertscher. Becker has been highly critical of the foundation, Semmens says, casting aspersions upon its mission and good faith. 'But the main thing in this case is the SEIU connection. In other cases, he'd written briefs on the issues in question in the course of litigation in his role at the SEIU.'

So far, Becker has accommodated the NRWF in exactly one case in which his recusal was sought. 'In that case, Becker had signed the legal brief and was the counsel of record,' Semmens says. 'If you can't recuse yourself from that#...#well, then when would you?'

In the Pomona Valley case, Becker published an opinion in which he concluded that he was not obliged to recuse himself because, even though he had been general counsel for the SEIU, he had not, in the past two years, represented the local chapter in question. The distinction between the national SEIU and the locals is a questionable one. The SEIU's national body exercises a high level of control over the locals. In fact, the SEIU is the locals -- the union's constitution defines the SEIU as an organization that 'shall consist of an unlimited number of Local Unions chartered by it, and the membership thereof, and such affiliated bodies as may be established from time to time.' More to the point, the finances of the national SEIU are directly dependent upon those of the locals, and the SEIU is an organization with money on its mind: It funds itself through a 'tax' on dues paid to local chapters, the rate being $7.65 per member per month. With 2.2 million members nationwide, that's a substantial monetary motive: nearly $17 million a month. So bottom-line-oriented is the SEIU that workers granted lifetime memberships, retirees, and others paying less than the full dues to the union are barred from voting under the SEIU constitution.

The Obama administration has made a lot of fuss about its high ethical standards, though it has taken many opportunities to skirt them. Big Labor has insinuated itself deeply into the administration, and no union more so than the SEIU. But imagine for a moment that this was not a labor-relations case. The Obama administration is full of Wall Street veterans, too. Imagine that a former Goldman Sachs executive had been named to the Securities and Exchange Commission (SEC) and was ruling on Goldman issues under the argument that he hadn't worked in the division in question. There would be a whole Chinese opera of discord.

#page#'The basic rule, which applies to all federal employees, is that there is a one-year period in which they cannot deal with issues involving a former employer -- or former clients, in the case of lawyers,' explains SEC spokesman John Heine. 'President Obama announced a policy that the period was going to be extended to two years for presidential appointees, which would include any commissioner.'

But apparently it does not include Craig Becker at the NLRB.

#ad#'We think he should be recusing himself in all these cases,' Semmens says. 'The Obama administration has made much ado about its ethics pledge. It's quite clear that you can't do anything on issues relating to your former employer, but here's Becker saying, ‘That doesn't apply to me.' The SEIU's forced dues are dependent on the outcomes of these cases -- it's obvious that they have a strong interest in the outcomes.'

Semmens isn't alone in his concern. Rep. Darrell Issa (R., Calif.) requested that the NLRB's inspector general investigate Becker's non-recusals, and a report on that investigation was released on Tuesday. The report concluded that Becker had not acted improperly, since the local affiliates are separate legal entities. So, the next time the federal government asks the CEO of a fast-food corporation to render legal judgment on the conduct of an independently owned franchise, that apparently will pass federal muster. (I wonder, can we get McDonald's CEO Jim Skinner in charge of Michelle Obama's anti-obesity crusade?)

In the Pomona Valley case, Becker voted to give the SEIU chapter the gentlest of slaps on the wrist. Finding that they had violated the law, the NLRB ordered them to#...#hang a sign up in their office, reading, in part: 'We will not restrain or coerce you in the exercise of your right to refrain from protected union activity.' We will not restrain or coerce you: But if they do, they'll be defending themselves in front of a friendly board.

-- Kevin Williamson is a deputy managing editor of NR.

Full post as published by Bench Memos - National Review Online on July 21, 2010 (boomark / email).