In one of the most glaring examples of Washington's sordid revolving-door political culture, former National Labor Relations Board (NLRB) member Craig Becker took a job as co-general counsel with the AFL-CIO barely six months after leaving the government. Mr. Becker was the first-ever NLRB member to be appointed directly from a union. At the time of his recess appointment by President Obama, he worked as an attorney for the Service Employees International Union (SEIU).
The fact that Mr. Becker left a large union, worked for the federal agency that is supposed to function as a neutral arbitrator in labor disputes, and then went back to another labor organization as soon as his appointment ended should raise questions about his ability to act as an independent judge.
A review of Mr. Becker's record at the NLRB reveals a consistent pattern of pro-union activism. The only functional difference between his post at the board and his job as a union lawyer is that taxpayers paid his salary at the NLRB.
Worse, his pro-union advocacy often was based on dubious legal reasoning. Judges overturned several decisions Mr. Becker supported and voted for while he was a member.
Mr. Becker's ties to major unions were one of the reasons his nomination was rejected by the Senate in bipartisan fashion. Only three months into his tenure, then-ranking member (now chairman) of the House Oversight and Government Reform Committee, Rep. Darrell E. Issa, California Republican, asked the inspector general to investigate the likely conflicts of interest in Mr. Becker's participation in a case to which his former employer was a party.
Under oath during his confirmation hearing, Mr. Becker stated, "[I]f at any time during my service on the board a case comes before me relating to SEIU, an SEIU local or any other entity in which recusal is not required by law, by my ethics pledge, or by my ethics agreement, but where the particular circumstances are such that my participation would constitute a conflict of interest, I will recuse myself."
However, Mr. Becker refused to recuse himself from cases involving SEIU local unions because the cases did not involve the national SEIU headquarters and, taking legal hair-splitting to a new level, Mr. Becker argued that the locals were "distinct legal entit[ies]."
Mere days after Mr. Becker's new position became public, Terrence Flynn, a Republican member of the NLRB, announced that he would resign because of an ethics violation. Democrats in Congress had accused Mr. Flynn of giving out information of pending board decisions. Whether the allegation had merit or not, Mr. Flynn saw that his position was compromised and resigned in order to preserve the integrity of the board.
That stands in sharp contrast to Mr. Becker, who ignored similar calls to step down and contorted himself through questionable justifications to continue to hear cases involving his former employer.
The ethics charges and the blatant revolving door between organized labor and the NLRB makes it clear that changes are needed. A first step would be for the president to uphold the tradition of not appointing nominees directly from unions, which clearly have partisan interests.
Unfortunately, the recess appointment of Richard Griffin, general counsel for International Union of Operating Engineers, means this president will heed no such tradition.
Additional reforms are needed. The two-year ban on participating in cases involving former clients and employers should be changed to explicitly include local affiliates of international unions.
Similar to the investigation of Mr. Flynn, Congress should investigate whether Craig Becker had any communications with the AFL-CIO regarding a future job while he was still a member of the board and hearing cases involving the labor federation.
If Mr. Becker did have such communication, this could be a violation of the Standards of Ethical Conduct for Employees of the Executive Branch, which prohibit participation in matters where an appointee "is negotiating or has any arrangement concerning prospective employment."
According to a quick search of the legal database Westlaw, Mr. Becker, while on the board, heard and participated in 176 cases to which the AFL-CIO or an AFL-CIO-affiliated union was a party.
From recess appointments to the revolving door to ethical scandals to frequent overruling by federal judges, the NLRB has lost much of it credibility. The board's current makeup and its recent decisions show it is acting not as a neutral judicial body, but as a political executive agency pursuing a special-interest agenda.
Regardless of which party is in office, the board will continue to function as a political football unless its structure is fundamentally changed. Instead of being an "independent" executive agency under the president, it should be a specialized federal judicial court. Moving the NLRB to the judiciary – with federal rules of evidence and procedure and independent judges – will solve many of the problems that now plague this politicized agency. Only then will workers know they have a truly independent neutral arbitrator overseeing workplace disputes.