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54–758 PDF 2010

S. HRG. 111–717 

NOMINATION OF HAROLD CRAIG BECKER 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

ON

NOMINATION OF HAROLD CRAIG BECKER, OF ILLINOIS, TO BE A 

MEMBER OF THE NATIONAL LABOR RELATIONS BOARD 

FEBRUARY 2, 2010 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/senate 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

TOM HARKIN, Iowa, Chairman 

CHRISTOPHER J. DODD, Connecticut 

BARBARA A. MIKULSKI, Maryland 

JEFF BINGAMAN, New Mexico 

PATTY MURRAY, Washington 

JACK REED, Rhode Island 

BERNARD SANDERS (I), Vermont 

SHERROD BROWN, Ohio 

ROBERT P. CASEY, JR., Pennsylvania 

KAY R. HAGAN, North Carolina 

JEFF MERKLEY, Oregon 

AL FRANKEN, Minnesota 

MICHAEL F. BENNET, Colorado 

MICHAEL B. ENZI, Wyoming 

JUDD GREGG, New Hampshire 

LAMAR ALEXANDER, Tennessee 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

JOHN MCCAIN, Arizona 

ORRIN G. HATCH, Utah 

LISA MURKOWSKI, Alaska 

TOM COBURN, M.D., Oklahoma 

PAT ROBERTS, Kansas 

DANIEL SMITH, Staff Director 

FRANK MACCHIAROLA, Republican Staff Director and Chief Counsel 

(II) 

C O N T E N T S 

STATEMENTS 

TUESDAY, FEBRUARY 2, 2010 

Page 

Harkin, Hon. Tom, Chairman, Committee on Health, Education, Labor, and 

Pensions, opening statement ............................................................................... 1 

Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming, prepared 

statement .............................................................................................................. 3 

Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia ....................... 3 

Becker, Harold Craig, Associate General Counsel, The Service Employees 

International Union and the American Federation of Labor & Congress 

of Industrial Organizations, Chicago, IL ............................................................ 6 

Prepared statement .......................................................................................... 8 

Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio ............................. 11 

McCain, Hon. John, a U.S. Senator from the State of Arizona ........................... 13 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 15 

Prepared statement .......................................................................................... 15 

Merkley, Hon. Jeff, a U.S. Senator from the State of Oregon ............................. 17 

Franken Hon. Al, a U.S. Senator from the State of Minnesota ........................... 18 

Prepared statement .......................................................................................... 20 

Casey, Hon. Robert P., Jr., a U.S. Senator from the State of Pennsylvania ...... 20 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc.: 

Response by Harold Craig Becker to questions of: 

Senator Enzi .............................................................................................. 24 

Senator Burr .............................................................................................. 26 

Senator Isakson ......................................................................................... 27 

Senator McCain ......................................................................................... 30 

Senator Hatch ............................................................................................ 39 

Senator Coburn, M.D. ............................................................................... 47 

Letters of Support ............................................................................................. 52 

Letters of Opposition ........................................................................................ 55 

(III) 

(1) 

NOMINATION OF HAROLD CRAIG BECKER 

TUESDAY, FEBRUARY 2, 2010 

U.S. SENATE, COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, Washington, DC. 

The committee met, pursuant to notice, at 4:00 p.m., in Room 

SD–430, Dirksen Senate Office Building, Hon. Tom Harkin, Chairman of the committee, presiding. 

Present: Senators Harkin, Brown, Casey, Merkley, Franken, 

Isakson, McCain and Hatch. 

OPENING STATEMENT OF SENATOR HARKIN

The CHAIRMAN. The Committee for Health, Education, Labor, 

and Pensions will come to order. 

We are here today to take the rather unusual step of holding a 

hearing on a nominee for the National Labor Relations Board. It 

has not been the standard practice of this committee to hold hearings on NLRB nominations. For the past 25 years, we have confirmed 28 new members to the Board; we have held only one hearing in that time, and that was for the Chairman in 1993. We have 

not had a hearing on a nominee to serve as a regular Board member since 1980, three decades ago. 

However, my colleagues on the other side of the aisle have requested a hearing. And while I am reluctant to further prolong the 

consideration of an obviously well-qualified nominee, I was willing 

to bend over backwards to accommodate that request, because I 

think the work of the NLRB is tremendously important and deserves this committee’s attention. 

The NLRB is a small agency, but its mission is a large one, to 

‘‘encourage the practice and procedure of collective bargaining and 

protect the exercise by workers of full freedom of association.’’ In 

today’s challenging economy, these rights are more important than 

ever. 

When the economy is bad, workers are insecure, and more vulnerable to abuse. It becomes much harder for them to join together 

to insist on fair treatment. It becomes much riskier to speak out 

about unsafe working conditions, it becomes an act of real bravery 

for a worker to stand up and say, ‘‘We deserve to be treated with 

fairness, and decency, and respect.’’ 

Well, American workers have the right to do, and say, all of 

these things because they are protected by the National Labor Relations Act. Even for the majority of workers who may never hold 

a union card, just having these rights available is an invaluable deterrent against abuse. 

2 

But the system only works if there is a strong NLRB to enforce 

these rights. I made no secret of the fact that I have been troubled 

by some aspects of the recent Board’s performance. In recent years, 

the Board doesn’t seem to be doing all it can to inform workers of 

their rights, or to assess appropriate penalties for repeat violators 

of our labor laws. 

I’m also concerned with the excessive delays of the Board. Justice 

delayed is justice denied, and all too often these delays mean there 

is no real penalty for violating workers’ rights. We have a fivemember Board, there’s only two members there now, and they can’t 

get the job done. 

So, I think it’s a serious challenge to restore the balance, to revitalize the core mission of this Agency, which I just quoted. 

I am confident that Mr. Becker can be an important part of that 

effort. Craig Becker is one of the pre-eminent labor law thinkers 

in the United States and, I might add, a proud son of the State of 

Iowa. He has taught labor law at some of our finest law schools, 

including Georgetown, UCLA, and the University of Chicago, he 

has authored numerous articles on labor and employment issues. 

Mr. Becker is also a skilled litigator who has advocated for workers’ interests in the highest courts of the land, arguing cases in virtually every Federal Court of Appeals, and before the U.S. Supreme 

Court. 

I have met with Mr. Becker, I have spoken with him at length, 

and I can say with great confidence he will be an invaluable addition to the National Labor Relations Board. He’s an expert on the 

law, he knows the Board, he brings a tremendous depth of experience to this important position. 

Despite Mr. Becker’s superb qualifications for the Board, some of 

my colleagues have expressed concern about his nomination. Much 

of this concern, it seems to me, is focused on Mr. Becker’s academic 

writings. As an academic, Mr. Becker has written extensively on a 

variety of legal topics. I can’t say I’ve read them all, but I’ve read 

some. 

He has taken a critical approach to existing law. There’s nothing 

wrong with that—I do that myself. But that’s what academics are 

supposed to do; to contribute to the marketplace of ideas. 

Mr. Becker made clear in his responses to this committee’s written questions that he understands and respects the distinction between his current role as an intellectual advocate and the role he 

would play on the Board as an impartial adjudicator. He is fully 

aware of what his duty as a member of the Board would be. 

Some other critics seem to object to Mr. Becker simply because 

he was a union lawyer—a union lawyer—and I might add, a pretty 

darn good one. This is hardly cause for concern for a Board member. Most labor lawyers devote their careers either to representing 

unions and workers or to representing management. And we, on 

this committee, have confirmed Board members with both union 

side and management side backgrounds in the past without any 

great cause for concern. 

As with these past members, I’m confident that Mr. Becker will 

approach the job with an impartial and open mind. There is no 

question that Mr. Becker has been thoroughly vetted for this position. He has met personally with any Senator who has requested 

3 

it. He has answered more than 280 written questions from this 

committee, the members; more questions than were even asked of 

Justice Sotomayor, I’m told. 

Everyone on the committee has had ample time to review his 

record and his responses. So, I hope that today’s hearing will bring 

us to the end of this lengthy process, that we can move quickly to 

confirm Mr. Becker’s nomination and let him start his important 

work. 

I will yield now to Senator Isakson for his opening statement. 

STATEMENT OF SENATOR ISAKSON

Senator ISAKSON. Well, thank you very much, Chairman Harkin. 

Welcome, Mr. Becker. I enjoyed talking to you in our office, I appreciate your being here today. And I would like to ask unanimous 

consent that the full statement of Ranking Member Mike Enzi from 

Wyoming be submitted for the record. 

The CHAIRMAN. Without objection. 

[The prepared statement of Senator Enzi follows:] 

PREPARED STATEMENT OF SENATOR ENZI

I’d like to thank Chairman Harkin for calling this hearing today. 

As my colleagues know, Mr. Craig Becker is nominated to serve as 

a member of the National Labor Relations Board. I would also like 

to thank Chairman Harkin for holding a confirmation hearing prior 

to a committee vote on this nominee. But I am concerned that the 

Majority has scheduled a vote on Mr. Becker for Thursday. Typically, under regular order in this committee, we have a 10-day period following a nomination hearing to review what we’ve learned, 

and to ask follow-up questions. It is unfortunate that we will not 

have that opportunity with this nominee. There will be testimony 

from this hearing and follow-up questions that could help inform 

our decision on this nominee, but this committee’s review will unfortunately be incomplete because of the haste taken in moving to 

a mark-up. 

Serious concerns have been raised by HELP Committee members 

and the employer community about Mr. Becker’s writings—particularly the potential for radical changes in labor law he has advocated, and argued can be implemented, without congressional authorization. I sincerely hope that Mr. Becker will speak to this concern in today’s testimony and in follow-up questions as well. 

Some will argue that Senators on this committee should accept 

vague assurance that a nominee will follow precedent and the law, 

and that the nominee respects the legal rights of employers and individual union members. But I will be looking for specific assurances with respect to specific statutes and regarding specific limits 

on the Board’s authority. I say that upon examination of the current situation at the National Mediation Board (NMB). 

Last year, the HELP Committee confirmed two nominees at the 

National Mediation Board who promised the committee one thing 

and acted in direct contradiction to their promises almost immediately upon assuming office. I certainly don’t want to hold this 

nominee accountable for the actions of others, but going forward I 

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4 

able for their testimony, as we carry out our oversight responsibilities. 

Mr. Chairman, independent boards such as the National Labor 

Relations Board are entrusted with a great deal of autonomy. The 

decisions they hand down and the regulations they enforce control 

a very significant portion of our economy, and our Nation’s jobs. In 

the Senate, it is our responsibility to determine if these nominees 

can be entrusted with this power, or if they would compromise fairness to grant favors to special interest groups and former employers. 

I want to raise my concern today that Mr. Becker’s ethics disclosure paperwork has not been updated with the Office of Government Ethics since July 2009 as far as I am aware. The career professionals at the Office of Government Ethics and the National 

Labor Relations Board should determine whether his financial interests have changed since then. His paperwork also needs further 

review to determine if he has worked on additional matters since 

last July that could subject him to added recusals, if confirmed. 

The Administration has pledged its support for transparency and 

accountability, and I, therefore, question why this committee is 

rushing this nominee through without the regular review. With 

any nominee, it is important before we hold any vote in committee 

that all paperwork is completed. 

Finally, Mr. Chairman, I also want to register my concern with 

hastily moving controversial nominees before the seating of Senator-Elect Scott Brown. Yesterday, the Senate invoked cloture on 

DOL Solicitor Nominee Patricia Smith, by a vote of 60–32, a nominee who was voted out of committee on a straight party line vote. 

I have been supportive of nearly all of the nominees who have come 

before this committee and I have worked hard with the Chairman 

to swiftly confirm these nominees and put them in place. But the 

Senate has an important responsibility of advice and consent. It is 

my view that this committee should refrain from jamming through 

nominees along party lines, and should not report out nominees before the seating of the new Senator. I urge this Administration to 

find qualified nominees who will enjoy broad support across party 

lines in the Senate. And, I commit to doing my part in helping to 

see that this happens in the upcoming year. 

I thank the Chairman for holding this hearing and I join him in 

welcoming Mr. Becker here today. 

Senator ISAKSON. I am standing in for Senator Enzi today as 

Ranking Member as he has another commitment. 

The five-member NLRB supervises union elections, investigates 

labor practices and most importantly, issues rulings that interpret 

the National Labor Relations Act. Currently, the Board has two 

Commissioners—one Democrat and one Republican. 

The NLRB oversees a delicate balance of current law and on organizing provides advantages and restrictions for both sides. 

Mr. Becker, as mentioned by the chairman, is currently Associate 

General Counsel to both the AFL–CIO and the Service Employee’s 

International Union. So, it is appropriate, to be sure, that the answer to the question of the willingness to maintain a balance when 

casting the deciding vote. 

5 

Just yesterday, the committee received two letters in opposition 

to Mr. Becker’s nomination; one from 23 major trade associations 

representing millions of American employers, another from 600 

manufacturers nationwide, and I would ask unanimous consent 

those letters be submitted for the record. 

The CHAIRMAN. Without objection. 

[The information referred to can be found in Additional Material.] 

Senator ISAKSON. Thank you, Mr. Chairman. 

All of the members of this committee are aware that Congress 

is currently considering legislation known as the Employee Free 

Choice Act, which would essentially end the practice of secret ballot 

process in union elections. Some have expressed concerns that Mr. 

Becker’s past writings have indicated a belief that the NLRB has 

the authority to make some of the dramatic changes included in 

the Card Check bill without congressional action. 

I recently questioned Mr. Becker when he was kind enough to 

come to my office, and I questioned him in writing, as well, about 

this important matter. I asked him if he would attempt to certify 

a union even if no secret ballot election had occurred. He replied 

that he understood that the Board can only certify the results of 

a Board-conducted election. And I would appreciate his reconfirming that statement that he made to me in that private meeting 

today. 

Mr. Becker has also advocated a new body of campaign rules that 

would severely limit the ability of employers to voice their opinion 

on unionization. He has argued that a meeting an employer holds 

that involves captive audience ought to be grounds for overturning 

an election. If an employer wants to distribute leaflets that oppose 

the union, for example, Mr. Becker said, it must allow the union 

access to its private property to do the same. But Mr. Becker has 

assured me that these comments as said by the Chairman were 

scholarly writings, made as a scholar, seeking to further meaningful and wide-ranging analysis of the law. 

He went on to say that any such statements will not control his 

judgment on these questions if he’s confirmed as the member of the 

NLRB. 

I raised that question to make this point. Last year we confirmed 

two nominees to the National Mediation Board on this committee. 

Both of those nominees I questioned at length over the question of 

organizing in the aviation industry. The National Mediation Board 

oversees those elections, and for 75 years, union recognition required a majority vote of all of the employees in the company. Now 

the new Democrat NMB is seeking to change the rule to a majority 

of those voting, which as anybody in this room could tell, is a significant sea change in the delicate balance between management 

and labor. 

I questioned both of those nominees on their disposition toward 

that issue and both assured me that they’d not rush to judgment. 

Yet, within weeks of their confirmation they—as a majority of two 

on the three member board—brought forward a rule which is now 

pending, that will change a 75-year-old practice so that an airline— 

Delta Airlines, for example, that acquired Northwest—which has a 

union shop in terms of the flight attendants at Northwest, nonVerDate Nov 24 2008 14:28 Dec 20, 2010 Jkt 035165 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 S:\DOCS\54758.TXT DENISE
6 

union at Delta—now a 75-year-old rule is going to be changed by 

this majority who said they’d give it time to think about it and investigate it. So, if the turnout was 10 percent, 6 percent of a unit 

could permanently unionize the entire unit. 

That’s why it is so important for me to have assurances from Mr. 

Becker as to the approach he’s going to take on the critical questions he’ll have before him in the not-too-distant future. 

So, Mr. Becker, I welcome you to be here today, I hope you’ll take 

the time to answer those two questions, and Mr. Chairman, I 

thank you for the time to ask them. 

The CHAIRMAN. Thank you very much, Senator Isakson. 

Harold Craig Becker has been an Associate General for the Service Employees International Union since 1990, also staff counsel for 

the AFL–CIO since 2004. As I mentioned earlier, a native Iowan, 

Mr. Becker graduated from Iowa City West High School before 

going on to Yale University and Yale Law School. Now, wait a second, maybe I have some doubts, now. 

[Laughter.] 

The CHAIRMAN. No, I’m just kidding. Just kidding about Yale, 

that’s all. 

He has since taught labor law at UCLA, University of Chicago 

and Georgetown Law Schools, he has published numerous articles 

on labor and employment law in scholarly journals, including the 

Harvard Law Review and the Chicago Law Review, as I mentioned 

earlier, has argued labor and employment cases in virtually every 

Federal Court of Appeals and before the U.S. Supreme Court. He 

and his wife, Amy Stanley, have two sons, Thomas, 18, and Isaac, 

16. 

Mr. Becker, welcome to the committee. Your statement will be 

made a part of the record in its entirety. I was going to ask you 

to sum it up, but it’s a fairly short statement, so please proceed as 

you so desire. 

STATEMENT OF HAROLD CRAIG BECKER, ASSOCIATE GENERAL COUNSEL, THE SERVICE EMPLOYEES INTERNATIONAL 

UNION AND THE AMERICAN FEDERATION OF LABOR 

& CONGRESS OF INDUSTRIAL ORGANIZATIONS, CHICAGO, IL 

Mr. BECKER. Thank you Chairman Harkin, Ranking Member 

Isakson, and members of the committee. It is a great honor to appear before you today. 

I’d like to thank my wife, Amy Dru Stanley, and my two sons, 

Tom and Isaac, not only for being here today but for their willingness to uproot their happy lives on the South Side of Chicago. 

In addition, I would like to thank my parents, Sam and Ruth 

Becker. My parents instilled in me some of the core values that I 

hope to carry with me into my service on the Board, should I be 

confirmed. My mother fled the terror of Nazi Germany. She came 

to this country and became a nurse. From her, I gained a profound 

appreciation for the liberties that we enjoy—of speech, of belief, 

and of association—and of the security I might otherwise have 

taken for granted growing up, as the Chairman has indicated, 

among the rolling corn fields of Iowa. 

My father grew up playing along the banks of the Mississippi 

River in Quincy, IL. He fought for our country in the Pacific during 

7 

World War II. He came back to college on the G.I. Bill, and became 

a beloved teacher at the University of Iowa. From my father I 

learned the value of hard work and the importance of respecting 

all points of view, no matter how different from my own. From both 

my parents, I learned a reverence for country and a desire to serve 

it. 

When I was growing up, my father used to tell me stories about 

growing up just up the stairs from his father’s shoe repair shop. 

My grandfather came to this country from Poland on a steamship 

with nothing but what was in his pockets. He somehow made his 

way from New York to Quincy, and there he scraped together the 

money to start his own shop, the Star Shoe Repair. For my father’s 

family, the shop represented the American dream. And my grandfather in one person, embodied the vital, creative, and productive 

forces that American labor law seeks to knit together in harmony. 

On the one hand he was an entrepreneur. He staked everything 

on his shoe shop and he was always dependent on being able to 

satisfy his customers. On the other hand, he was a worker—bent 

over his bench, hammer in hand, proud of his craft. I still have one 

of the iron shoe casts from his shop, and I keep it on my shelf to 

remind me where I come from. 

I have devoted my entire professional career to teaching and 

practicing in the area of labor and employment law. I have represented not only unions but individual employees in diverse trades 

and professions—prison guards to retail clerks, hospital administrators to home-care workers, before the Board and courts ranging 

from the courts of common pleas to the U.S. Supreme Court. 

I have had the luxury of debating the big questions of labor and 

employment law with my students and colleagues at a number of 

law schools in attempting to contribute to the robust debate which 

is the hallmark of our system of higher education. 

As an attorney, I have sat across the table from management 

and sometimes on the same side of the table as management. I’ve 

learned to appreciate the concerns of employers, and often been 

able to find common ground between labor and management. 

It is humbling to sit before you and contemplate serving on the 

National Labor Relations Board, an institution that—for 75 years 

this year—has defended the rights of working Americans. During 

the course of my almost three decades of practice, I have had the 

opportunity to work with the Board’s staff at almost every level. I 

have participated in representation cases, been present when the 

ballot boxes were opened and at that often tense moment when the 

tally is announced. 

I have represented both sides in unfair labor practice cases, I’ve 

appeared before the Board, I’ve sat with the Board’s counsel and 

across the courtroom from the Board’s counsel in many Courts of 

Appeals. In every instance, my understanding of labor law has 

been enriched by the Board’s staff. And I would be remiss today if 

I did not underscore the professionalism and dedication of the current chairman Liebman and member Schaumber. It would be an 

honor to serve with them. 

Finally, should I be confirmed, I want to pledge today that I will 

remain faithful to the will of Congress. Like other members of the 

labor bar—both labor and management side who have served on 

8 

the Board and applied the law impartially and fairly—if confirmed, 

I will do the same. 

Although the labor relations bar is a divided one, I look forward—if given the opportunity—to rising above partisanship to 

serve a higher purpose, which is the fair and impartial application 

of the law. I fully understand that my decision, should I be confirmed to be a member of the Board—unlike the musings of a 

scholar—will have important, immediate, and concrete implications 

for labor, for management, and for the general public. 

In sum, I understand that, if confirmed, I will have a duty to implement the intent of Congress as expressed in the law, to consider 

impartially all views expressed to the Board, to deliberate with my 

fellow Board Members, and to adjudicate cases based on the facts 

presented and the law. That is exactly what I pledge to do, if confirmed. 

I thank you for the opportunity to give these opening remarks 

and I look forward to your questions. 

[The prepared statement of Mr. Becker follows:] 

PREPARED STATEMENT OF HAROLD CRAIG BECKER

Thank you Chairman Harkin, Senator Enzi, and members of the committee. It is 

a great honor to appear before you today as well as to be considered to be a member 

of the National Labor Relations Board. 

I am joined here by my wife, Amy Dru Stanley, and two sons, Tom and Isaac 

Stanley-Becker. I would like to thank them not only for being here today but also 

for their willingness to uproot their lives on the South Side of Chicago. 

I would also like to thank my parents, Sam and Ruth Becker. My parents instilled 

in me many of the core values that I will carry into my work at the Board, should 

I be confirmed. My mother, who is no longer with us, fled the terror of Nazi Germany as a young girl, and later became a nurse in the United States. From her, 

I gained a profound appreciation for the liberties we enjoy in this Nation—of speech, 

of belief, and of association—as well as a vivid awareness of the security I might 

otherwise have taken for granted growing up amidst the rolling corn fields of Iowa. 

My father, who cannot be with us today, played on the banks of the Mississippi as 

a boy in Quincy, IL, fought for our country in the Pacific during World War II, returned to college on the G.I. Bill, and became a beloved teacher at the University 

of Iowa. From him, I learned the value of hard work and the imperative of respecting the views of others—no matter how different from my own. From both my parents, I learned a reverence for our country and a desire to serve it. 

My father often told me stories of growing up just up the stairs from his father’s 

shoe repair shop. My grandfather came to America on a steamship from Poland. A 

young man with nothing but what was in his pockets, he made his way from New 

York to Quincy, and there somehow scraped together the money to start his own 

shop—Star Shoe Repair. For my father’s family, the shoe shop represented the 

American dream. And my grandfather embodied the vital, creative, and productive 

forces that our Nation’s Federal labor law seeks to bind together in harmony. My 

grandfather was an entrepreneur—staking everything on his shop and ever dependent on his customers to stay in business. Simultaneously, he was a worker—bent 

over his bench with hammer in hand, proud of his craft. I keep one of the iron shoe 

casts from his shop on my shelf to remind me of where I come from. 

I have devoted my entire professional career to teaching and practicing labor and 

employment law. I have represented not simply unions but also individual employees, belonging to no labor organization, in diverse trades and professions—from 

prison guards to retail clerks, from hospital administrators to home-care workers. 

I have appeared before both the Board and in courts ranging from county courts of 

common pleas to the U.S. Supreme Court. I have debated central questions of labor 

law with colleagues and students at Georgetown University, the University of California at Los Angeles and the University of Chicago School of Law. As a scholar, 

I have had the opportunity to reflect on the broad sweep of the law and join in 

robust, open, and provocative dialogue, which is the lifeblood of the American system of higher education. As an attorney, I have sat across the table from management and also on the same side of the table, in both postures gaining an understanding of employers’ concerns and often finding common ground between labor 

9 

and management. It is this range of experience that, should I be confirmed, I will 

draw on in collaborating with my fellow Board Members to fairly, efficiently and 

faithfully apply the law. 

It is humbling to contemplate serving on the National Labor Relations Board, an 

institution that has protected the rights of working Americans for 75 years. In my 

practice, over the course of almost three decades, I have had the opportunity to 

work with the Board’s staff at almost every level. I have participated in representation cases and I have been present when ballot boxes were opened and at the 

charged moment when the vote tally is announced. I have met with General Counsels—nominated by Presidents from both parties—to discuss whether complaints 

should issue. I have represented parties on both sides of unfair labor practice cases, 

argued before the Board itself, and appeared alongside the Board’s counsel and 

across the courtroom from the Board counsel in the U.S. Courts of Appeal. In every 

instance, my understanding of the law has been enhanced by the Board’s highly 

skilled staff, who are committed to the purposes of the act. And I would be remiss 

if I did not underscore the dedication and professionalism of current Chairman 

Liebman and Member Schaumber, particularly during the last 2 years when they 

have continued to perform the work of the Board while the other three seats on the 

Board remain vacant. It would be an honor to serve with them and work with the 

entire staff of the Board and its General Counsel. 

Finally, should I be confirmed, I will always remain faithful to the will of Congress. Like other members of both the labor and management bars who have served 

on the Board and applied the law impartially and fairly, I will do the same. Although the labor relations bar tends to be a divided one, I embrace the opportunity, 

should I become a member of the Board, to transcend the adversarial process in 

order to serve a larger purpose—the fair and faithful enforcement of the law. I fully 

understand that, if confirmed, I will occupy a position far different from the positions I have occupied as a scholar, teacher, and advocate. I fully understand that, 

if confirmed, my decisions, unlike the views of a scholar, will have practical, concrete, and important consequences for labor, management and the public at-large. 

In sum, I fully understand that, if confirmed, I will have a duty to implement the 

intent of Congress as expressed in the law, to consider impartially all views appropriately expressed to the Board, to deliberate with my fellow Board Members, to use 

the wealth of knowledge and experience possessed by the Board’s career staff, and 

to decide cases fairly based on the relevant facts and applicable law. That is exactly 

what I pledge to do, should I be confirmed. 

Thank you for the opportunity to offer these opening remarks. I welcome your 

questions. 

The CHAIRMAN. Mr. Becker, thank you very, very much for that 

statement. We’ll open a round of 5-minute questions. 

Mr. Becker, right off the bat, here, some of your critics have suggested that you are coming to the Board with an agenda, and that 

you intend to implement Card Check, administratively, requiring 

the Board to certify a union as employees collective bargaining representative on the basis of signed authorization cards, rather than 

a secret ballot election. 

Now, I have noted in your responses to written questions for the 

record from my Republican colleagues that you have refuted this 

claim multiple times, explaining that the Card Check process proposed in the Employee Free Choice Act would require an act of 

Congress. Can you provide more detail on how the National Labor 

Relations Act constrains the Board’s ability to implement the Card 

Check certification process administratively? 

Mr. BECKER. Well, thank you for the opportunity to address that 

question, Senator Harkin. 

The reason the Employee Free Choice Act has been introduced 

in Congress and the reason that question is before the Congress 

and not the Board is that the current act clearly precludes certification in the absence of a secret ballot election. Section 9 of the 

Act, in two distinct ways, makes clear that Congress has intended 

that a secret ballot election be preconditioned for certification of 

the union as a representative of a unit of employees. First, it so 

10 

provides explicitly—that is, it provides that the Board shall certify 

the results of a secret ballot election. 

Moreover, it provides that employers—should they be confronted 

with a demand for recognition based on evidence of majority support, for example, by signed authorization cards—may petition for 

a secret ballot election. 

So, the law is clear that the decision as to whether an alternative 

route to certification should be created rests with Congress, not 

with the Board. 

The CHAIRMAN. Thank you very much, Mr. Becker. I don’t think 

I could have been any clearer than that. That’s the only question 

I have for this round, I would yield to Senator Isakson. 

Senator ISAKSON. Thank you, Mr. Chairman. 

Well, on that question—because it is raised, as you are well 

aware—and it’s my understanding from the information I have 

that a gentleman by the name of Demetri Eglesian—are you familiar with Mr. Eglesian? 

Mr. BECKER. I know that he is a lawyer in Seattle, yes. 

Senator ISAKSON. He is an attorney—I do not know him—who 

represented the AFL–CIO and wrote that, 

‘‘Mr. Becker would make it easier for workers to unionize 

based on a card check showing a majority of support for the 

EFCA, Employee Free Choice Act, would.’’ 

So, this statement that he has written just implies, pretty explicitly, what the Chairman just asked you and you responded to, so 

I take it your affirmation of his question is a rejection of that quote 

I just read? 

Mr. BECKER. That’s absolutely correct, Senator Isakson. 

Senator ISAKSON. And the other gentleman was a Mr. Gould, 

who has made a similar—although not quite as direct—comment as 

before. 

Second question—I mentioned to you the Delta Airlines issue, 

and I hate to bring up a specific issue, but it’s timely and it’s appropriate, and it comes on the heels of a confirmation where the 

questions were asked of the potential nominees. That’s why, you 

should not take the questions of whether a statement is a reflection 

of your thought to be accurate or not to an insult to your intelligence, rather a need for the committee to know there’s going to 

be an even-handed approach in terms of the issues that have come 

before it. 

But on that question—that is a 75-year precedent in labor law 

that has served the aviation industry with little or no reservation 

that summarily on the act of two members of a three-member 

board has been put up for a comment to change within 60 days. 

You can see the tremendous magnitude that type of an action on 

behalf of a board that’s supposed to be a mediator, instead, becomes an activist, can bring to industry. I would think you would 

understand that point. 

Mr. BECKER. Yes, I do, Senator Isakson. 

Senator ISAKSON. Well, that’s the reason for that concern. 

And last, in the past you’ve stated the NLRB is not required to, 

‘‘Permit the employer to be an active participant either favoring, 

opposing, or even obstructing such an election,’’ referring to union 

elections. Does this mean that you favor the NLRB limiting emVerDate Nov 24 2008 14:28 Dec 20, 2010 Jkt 035165 PO 00000 Frm 00014 Fmt 6633 Sfmt 6601 S:\DOCS\54758.TXT DENISE
11 

ployers’ involvement in the election process as it currently operates? 

Mr. BECKER. Well, again, I thank you for giving me the opportunity to address that question, because I know that’s been a concern of many interested parties. 

When I was a teacher and a scholar, I wrote an extended article, 

and the purpose of the article was to step back and address the history of Board regulation of union elections—how it evolved over 

time from 1935 to the point that I wrote that article—and it was 

an attempt to contribute to a scholarly debate, and ask questions 

about the regulation of union elections. It asked questions about 

who the appropriate parties were, to the adjudication process, and 

what the role of those parties should be. It was intended to be provocative and ask fundamental questions in order for scholars and 

others to re-evaluate. 

I would suggest that that article is addressed to Congress. It 

asks questions about how labor relations should be governed, what 

the role of the parties should be. The current law clearly provides 

a right to employers to express their view—not only the National 

Labor Relations Act, but the first amendment to the United States 

Constitution. It’s clear that employers have a legitimate interest 

and have a right, which is indisputable, to express their views on 

the question of whether their employees should unionize. 

So, nothing in that article—if that’s what you’re referring to—or 

others of my writing should be construed to suggest that, in any 

way, I think that employers don’t have a right to freely express 

their views on the question of unionization. 

Senator ISAKSON. Summarily put, do you completely respect Congress’ authority in terms of writing the labor laws of the United 

States, and Congress should completely respect the ability of scholars to challenge and discuss—in an academic environment—the application of those laws? 

Mr. BECKER. That is absolutely correct, Senator. I understand 

that there’s a different role that I will have than the one I played 

as a scholar, and I respect that part of that role is to respect the 

will of Congress. 

Senator ISAKSON. Thank you, Mr. Becker. 

The CHAIRMAN. Thank you. 

Senator Brown. 

STATEMENT OF SENATOR BROWN

Senator BROWN. Thank you, Mr. Chairman. 

I just have one question, Mr. Becker. In your opening statement 

you mentioned you sat with both sides of the table in labor law 

cases. Based on those experiences, talk to us about how that’s instructed and informed your thinking on conflicts—when conflicts 

between labor and management are involved? 

Mr. BECKER. I think one of the very important differences between being a scholar and a practitioner, and I think one of the 

values of having been both, is that when you’re a practitioner engaged in the practice of labor law, you’re engaged on a daily basis 

with employers. It’s very different than sitting in your office in the 

ivory tower. Every day, in order to be a good advocate, you have 

to understand not only the rights, but the interests of the other 

12 

side. You can’t be a good labor lawyer without understanding that 

there’s very sound arguments on the other side, and very powerful 

and legitimate interests on the other side. 

I’ve practiced both employment law—representing individual 

workers—and labor law. And in litigation, as we all know, most 

cases end in settlement. So, in most instances, you’re reaching an 

amicable resolution with the employer; you’re reaching an accommodation, you’re working out the problem. 

The same is true in collective bargaining. In most instances, bargaining ends in agreement. The two sides recognize each others’ interests, they compromise, they reach an accommodation. 

So, I think the practice of labor law—unlike the teaching of labor 

law—that daily contact, and that need to understand the legitimate 

rights and interests of the other side—is enriching. 

One of the things that I’m most proud of is that while there has 

been opposition expressed by the business community to my nomination, many of the management lawyers who I’ve actually worked 

with for an extended period of time in Chicago, have written to the 

Senate expressing their confidence in my ability to be impartial. 

And my ability to be a problem solver. 

That experience has enriched me, and I hope will benefit me, 

should I be confirmed to the Board. 

Senator BROWN. Do you, from looking at NLRB decisions over 

the years, that—you did not use the word empathy, but you suggest that you at least understand the position of the other side, and 

you understand their interests and their views and their beliefs, 

which is, I guess, a fairly good definition of empathy. Do you think 

that members of the NLRB in the past—is that typically a feeling 

they have? That people understand that—that members of the 

NLRB really do understand both sides as they make those decisions? And, so how do you get there? 

Mr. BECKER. Well, I think the role of a member of the Board— 

like the role of a judge—starts not with empathy, but with the 

facts and with the law. I do think that experience is important in 

order to understand the facts. That is, if you’ve sat across the table 

from employers and really grappled with their problems and tried 

to find a solution which is acceptable to both sides, if you’ve sat 

next to an employee who’s been terminated, who’s been denied a 

promotion and really understood what that means to them and how 

that occurred, I think that experience does enrich your ability to 

understand the evidence and the facts presented. 

I’m not sure I would use the word empathy, but I would say that 

a broad and diverse experience that the members of the National 

Labor Relations Board should have—and I would bring one set of 

experiences, the two sitting members bring different experiences, 

and my two colleagues who have also been nominated bring a different set of experiences—those experiences will inform our ability 

to fairly adjudicate the facts and apply the law. 

Senator BROWN. Thank you, Mr. Chairman. 

The CHAIRMAN. Senator McCain. 

STATEMENT OF SENATOR MCCAIN

Senator MCCAIN. Thank you, Mr. Chairman. 

13 

I would ask to be included in the record, the letters from the National Association of Manufacturers—the Nation’s largest industrial trade organization, including a letter with some 600 companies around the country, the NFIB and others who have all 

weighed in heavily against Mr. Becker’s confirmation. 

The CHAIRMAN. Without objection, but you didn’t mean 600 letters, did you? 

Senator MCCAIN. Six hundred organizations have signed the letter. 

The CHAIRMAN. Signed off. 

[The information previously referred to can be found in Additional Material.] 

Senator MCCAIN. Mr. Becker, do you or did you perform work for 

and provide advice to ACORN, or ACORN-affiliated groups while 

employed by your current employers or on a volunteer basis? 

Mr. BECKER. Senator McCain, I have never done so. 

Senator MCCAIN. Never done that? 

Have you discussed labor law or SEIU efforts to organize or obtain collective bargaining rights for 37,000 home health-care workers with former Governor Blagojevich or any members of his staff? 

Mr. BECKER. I have—while I was in practice in Illinois, I represented and provided counsel to one of the SEIU locals in Illinois. 

Which, for a long period of time—long preceding the Blagojevich 

administration—had been working to organize home-care workers. 

When the Governor was elected, I did have discussions with 

members of his staff, and on one occasion I did have a discussion 

in which the Governor was involved. 

Senator MCCAIN. And what were your recommendations? 

Mr. BECKER. My discussion with the members of the Governor’s 

staff and with the Governor had to do with technicalities of the 

drafting of legislation eventually adopted by both houses of the legislature which extended collective bargaining to those workers. 

Senator MCCAIN. They needed your technical expertise? 

Mr. BECKER. Senator McCain, I’d worked on this particular issue 

in a number of different States. Preceding Illinois, I’d lived in Los 

Angeles and worked on legislation that was passed there under a 

Republican Governor which was quite parallel to the Illinois legislation, so I did have some expertise in the area. 

Senator MCCAIN. According to the Wall Street Journal, a second 

Executive order contemplated by former Governor Blagojevich was 

designed to enable the SEIU to organize workers in the State who 

care for developmentally disabled people in their homes. Did you 

have any involvement in preparing or developing a reported second 

Executive order for Governor Blagojevich to expand organizing to 

this group? 

Mr. BECKER. No, I did not, Senator. 

Senator MCCAIN. How many cases involving the SEIU will you 

have to recuse yourself from should you become a member of the 

NLRB? 

Mr. BECKER. That, of course, is difficult to predict, but the Service Employees International Union is rarely a party to Board proceedings, historically. 

Senator MCCAIN. Aren’t they involved in proceedings right now 

concerning the NUHW, which has petitioned the NLRB to hold 

14 

elections at dozens of healthcare facilities where workers are currently represented by the SEIU? 

Mr. BECKER. I have not been involved in that particular matter. 

I know that there are representation proceedings—— 

Senator MCCAIN. You haven’t been involved in it but you worked 

for the SEIU. 

Mr. BECKER. That’s correct, Senator. So, I do have some knowledge that there are proceedings pending at various levels—— 

Senator MCCAIN. Does that mean that you would be recused? 

You would have to recuse yourself? 

Mr. BECKER. Well, my ethical obligations—which I take very, 

very seriously and, in fact, the question that you asked as to the 

scope of those obligations and whether it would hinder my service 

on the Board is one I looked at very carefully, when I was asked 

if I would consider this nomination. As a result, those considerations led to the execution of an ethics agreement which lay out exactly the steps and the circumstances under which I would recuse 

myself. And I will—as I pledged in that agreement—recuse myself 

from any matter in which the SEIU is a party for 2 years after I 

am confirmed. 

If any other matter arises in which any questions can be raised, 

or might be raised about my impartiality, I will take that very seriously. I will consult with the Agency’s ethics officials, I will look 

at previous adjudication by other Board members that have considered similar questions, and I will recuse myself, if necessary. 

Senator MCCAIN. Well, I don’t think it’s that complicated, Mr. 

Becker. The quote from the pledge is, 

‘‘I will not, for a period of 2 years from the date of my appointment, participate in any particular matter involving specific parties as directly and substantially related to my former 

employer or former clients, including regulations and contracts.’’ 

It seems to me, since your former employer has been involved 

with a number of issues before the NLRB, you would have to 

recuse yourself from them. Since it’s your former employer. 

Mr. BECKER. I agree that that pledge is clear and I will abide by 

that pledge. 

Senator MCCAIN. Meaning that you will recuse yourself from any 

issues that come before the Board that have involvement with 

SEIU? 

Mr. BECKER. I will comply, Senator McCain, with the terms of 

that pledge scrupulously. And as I indicated, if any other matters 

come up outside of the scope of that pledge in which any party 

might think that I might not be impartial, I will fully consider the 

matter in consultation with the Agency’s ethics official and other 

applicable law and prior consideration of Board members of similar 

circumstances and, if necessary, recuse myself from those cases, as 

well. 

Senator MCCAIN. Well, I see my time has expired. That’s not 

good enough. That’s not good enough. If your former employer is 

involved in issues before the NLRB, you should recuse yourself 

from them. 

My time is expired. 

15 

STATEMENT OF SENATOR HATCH

Senator HATCH. Mr. Chairman, unfortunately, I have to leave. 

Would it be possible for me to submit my questions to Mr. Becker 

for the record? I’d appreciate that, and with that, I’ll have to go. 

The CHAIRMAN. Oh, I’d appreciate that. Yes, thank you very 

much. 

[The information referred to may be found in Additional Material.] 

[The prepared statement of Senator Hatch follows:] 

PREPARED STATEMENT OF SENATOR ORRIN G. HATCH

I want to thank Chairman Harkin and Senator Enzi for scheduling today’s hearing on the controversial nomination of Mr. Craig 

Becker to serve as a member of the National Labor Relations 

Board. 

Over my 34 years in the Senate, I have voted to confirm most 

nominees to the NLRB in both Republican and Democratic administrations. It has only been in the rarest of cases and with the most 

divisive nominees that I have voted against an Administration 

nominee to this board.

I note that I am not opposed to President Obama’s other NLRB 

nominees—Democratic union lawyer Mark Pearce and the Labor 

Counsel for Republicans on this committee Brian Hayes. That, it 

seems to me, is a good package that working with the current two 

members of the board would be able to decide cases without a cloud 

hanging over it. 

Both as Chairman and as Ranking Member of this committee 

over many years, I worked in a reasonable way with Senator Kennedy to agree on a balanced package of NLRB nominees—thereby 

avoiding the need for a committee hearing.

Unfortunately, the nomination of Craig Becker and his inclusion 

in this package of nominees is not such an occasion. 

If anyone warrants a hearing it is Mr. Becker. 

I hope he views this hearing as an opportunity to clarify his 

views to convince the skeptics among us that his controversial 

writings published throughout his career don’t represent his views 

today.

I hope he explains what he meant when he wrote that: 

‘‘Employers should have no legally sanctioned role in union 

elections’’ and also that ‘‘employers should be stripped of any legally cognizable interest in their employees’ election of representatives.’’ 

If employers should have no role in union representation elections, then employers would be prohibited from insisting on a private, NLRB-supervised secret ballot election to determine employee 

votes on union representation. Employers could then be forced to 

accept the equivalent of card check and the increased risks of union 

intimidation and peer pressure that comes with it. 

I hope he explains what he meant when he wrote that: 

‘‘The law leaves the board discretion to determine the appropriate parties to hearings in representation cases. It should exercise this discretion by specifying that the only parties to both 

16 

pre- and post-election hearings are employees and the unions 

seeking to represent them.’’ 

I hope he explains what he meant when he wrote about restrictions on employer free speech rights, including whether the same 

restrictions on the solicitation, distribution of material to and access to employees applies equally to outsiders as it does to employers. 

• Does he still believe there should be restrictions on an employer’s ability to require employee attendance at meetings to discuss 

union organizing? 

• Does he still believe there should be restrictions on where representation elections are held, when they are held (so-called quickie 

elections), and whether unions (but not employers) should be allowed to have an observer during the election (similar to poll 

watchers) to make sure that the election is conducted fairly, that 

there is no campaigning by employers or unions during the election, and that voters are only those eligible employees entitled to 

vote in an appropriate agreed-upon bargaining unit? 

• Does he still believe unions should be allowed to advocate for 

increasing the number of strikes by permitting repeated, shortduration, grievance strikes to overcome the current prohibition on 

partial or intermittent strikes? And I would add with a more than 

a hint of sarcasm, that this is just what we need in the current 

economy: numerous, short-term strikes to disrupt production and 

sales. 

These are just some of his controversial views that he needs to 

explain today. But it doesn’t end there. Mr. Becker has written extensively about NLRB decisions that he feels were wrongly decided 

and should be reversed. 

He should also use this hearing to try and convince us that his 

strong advocacy as a lawyer both with the AFL–CIO and with the 

SEIU would not interfere with his ability to be a balanced and impartial decisionmaker at the NLRB. 

He also needs to explain his controversial actions as a member 

of President Obama’s transition team for the Department of Labor 

while employed by the SEIU and AFL–CIO. He has admitted drafting the Executive order issued last January revoking the so-called 

Beck notice-posting requirement for Federal contractors and requiring instead the posting of a notice of employee rights under labor 

law. That Executive order was unquestionably in his employer’s 

best interests; in fact, the AFL–CIO called for such actions in its 

written recommendations for the labor department transition team. 

He also needs to explain his controversial work on behalf of 

ACORN. The controversial organization, linked to numerous instances of voter fraud, has praised Mr. Becker’s service in working 

to organize home-care workers. 

Finally, and most importantly, he should explain how productive 

a board member he can be when he is required for at least 1 year, 

and possibly longer, to recuse himself under the government ethics 

rules from cases involving the AFL–CIO and the SEIU, when he 

continues to be employed by both. 

Of course, we have had practicing lawyers confirmed to the 

NLRB in the past where they have been required to recuse themVerDate Nov 24 2008 14:28 Dec 20, 2010 Jkt 035165 PO 00000 Frm 00020 Fmt 6633 Sfmt 6601 S:\DOCS\54758.TXT DENISE
17 

selves from cases involving their clients. But this is the first time 

in my memory—and perhaps ever in the history of the NLRB— 

where a nominee is from the largest federation of labor unions and 

one of the largest international unions. 

Before we vote, we should at least know how many cases Mr. 

Becker would have to recuse himself from if he were on the NLRB. 

Mr. Chairman, that’s a lot of explaining to do. That’s why his 

nomination is so controversial. 

Unfortunately, his answers to well over 200 written questions I 

submitted to him last year were entirely unsatisfactory—his replies, for the most part, merely re-stated over and over that: (1) he 

was acting as a scholar when he wrote all of those articles, (2) that 

now suddenly he has no views that would prevent him from being 

open-minded, and (3) that he could not answer because if confirmed 

he might be required to rule on a case involving similar issues. 

So, Mr. Chairman, I am certainly looking forward to more complete, forthcoming, and candid answers this afternoon. 

The CHAIRMAN. Senator Merkley. 

STATEMENT OF SENATOR MERKLEY

Senator MERKLEY. I thank you, Mr. Chair. I’d be happy to defer 

to Senator Hatch if he wanted to ask his questions, in person, now? 

Senator HATCH. Thank you, but I have to leave. 

Senator MERKLEY. Thank you. Thank you, Mr. Becker, for coming before us and tackling these questions. In your testimony, you 

note that you have appeared before the Board and in courts ranging from county courts to the U.S. Supreme Court. Any interesting 

stories you can tell us about the issues you wrestled with before 

the U.S. Supreme Court? 

Mr. BECKER. I had a very interesting experience in the U.S. Supreme Court, Senator—very unsuccessful, I might add. But it was 

certainly a very gratifying moment in my professional career to appear before the Court. 

It was an issue—not involving Federal labor law—but rather the 

Fair Labor Standards Act. I represented a home-care worker, similar to the home-care workers Senator McCain was asking about. 

This one worked in New York, was employed by an agency and 

worked overtime, but was not paid for the overtime. And the question was whether such home-care workers should be exempt from 

the requirements for premium pay for overtime, because she was 

a so-called ‘‘companion’’ as that term is used in the 1974 amendments to the Act. 

So, it was an interesting question involving deference to administrative agencies, the scope of that exemption and I enjoyed the argument, but unfortunately I received no votes from the U.S. Supreme Court. 

Senator MERKLEY. Thank you for sharing that story. 

You noted that you had had letters from folks you worked with 

who had been lawyers for the management. Now, I know that labor 

negotiations and cases can become very intense, because there are 

issues being contested, and a lot of emotion goes into it—so I was 

fairly impressed by that. Perhaps you can describe who you worked 

with and what they said in their letters to help us understand the 

relationship that you forged with lawyers in that setting. 

18 

Mr. BECKER. I appreciate that opportunity. I think one of the 

questions that’s before the committee, legitimately, is about my 

character, and my ability to enter into this role, adjudicate cases 

fairly based on the facts and based on the law. And that’s why, I 

think, the letters from management lawyers who I’ve actually 

worked with, who actually know me, who I’ve been an adversary 

of, are important. 

There are two letters I’d like to point to that have been sent to 

the Senate, both from prominent and longstanding management 

lawyers in Chicago—one from Dick Marcus—Richard Marcus, he 

works for the Sonnenschein Nath & Rosenthal firm. He’s practiced 

labor law in Chicago, I want to say, for 35 years or so. He represents the building owners—so all of the major downtown buildings, the Sears Tower—formerly the Sears Tower, etc.—he represents the owners of those buildings. And we’ve been involved in 

litigation, we’ve been involved in collective bargaining, involving 

the Service Employees Local 1. We have, in other words, engaged 

on a number of different contexts. 

And he wrote a letter to, I believe, the Chairman and the Ranking Member, describing that relationship and indicating that he believed firmly that I could be impartial and fairly adjudicate cases 

as a Board member. 

The other letter is from Joseph Gagliardo, he’s with the Laner 

Muchin firm in Chicago, again, a long-time management firm, and 

I think what’s gratifying to me, in that letter from Joe is that he 

indicates, again, that we’ve been involved in matters which were 

very important to his clients, and very important to my client. But 

that he perceived me as a problem solver, someone he could sit 

down with, who understood not only his own clients’ interests, but 

the other lawyer’s clients’ interests. And could solve problems in 

that manner. 

Senator MERKLEY. Well, thank you very much. 

Mr. Chair, that satisfies my questions. Thank you. 

The CHAIRMAN. Senator Franken. 

STATEMENT OF SENATOR FRANKEN

Senator FRANKEN. Well, thank you, Mr. Chairman. 

Thank you, Mr. Becker for being here today for this unusual 

hearing, almost unique hearing. I am a member of four labor 

unions—I’m not sure how many members of this committee are. So, 

I appreciate how important this area of the law is. 

And I would imagine that most people who are nominated to the 

NLRB have had some experience in labor law, would that be a fair 

thing to say? 

Mr. BECKER. That’s absolutely correct, Senator Franken. 

Senator FRANKEN. And most of those people would—if they practiced labor law—would have either had to represent, usually, management or workers, right? That’s kind of what the labor law is 

about, right? 

Mr. BECKER. That’s been the history. It is—for better or for 

worse—a divided bar. 

Senator FRANKEN. Yes, OK. So, most people sort of specialize in 

one area or the other. And we have nominees—Brian Hayes—who’s 

Mr. Enzi’s labor counsel here. He came to my office and we had a 

19 

nice conversation, and he’s represented management for his entire 

career as a labor lawyer, so that happens—that’s very frequent— 

we do that a lot, right? 

Mr. BECKER. That has certainly been the pattern of appointments to the Board. 

Senator FRANKEN. It’s not unusual that someone who has represented labor would be nominated and confirmed to the NLRB, is 

that right? 

Mr. BECKER. That’s correct, Senator. 

Senator FRANKEN. This whole thing about the SEIU has happened before? 

Mr. BECKER. It has happened before and members of both side 

of the labor bar—both labor and management—— 

Senator FRANKEN. If someone had represented a certain somebody in management they might have to recuse themselves if that 

company or corporation came before them, right? 

Mr. BECKER. That’s correct, and there are written opinions by 

former board members—current and former board members— 

where such issues have come up and they have either decided to 

recuse themselves when appropriate, or found that it was not appropriate. 

Senator FRANKEN. Nothing unusual there. 

Now, you have answered, I understand, over 280 written questions from members of this committee, is that correct? 

Mr. BECKER. That is correct. 

Senator FRANKEN. Now, how long do they have to submit those 

questions? 

Mr. BECKER. Let me recall. There was an initial set of questions, 

we were nominated, I believe, in July and I received a written set 

of questions in late July which were answered during the summer, 

and then there was a set of follow-up questions in the fall, which 

were also promptly answered. 

Senator FRANKEN. In other words, whoever had questions had 

months and months, really, to submit questions to you, is that correct? 

Mr. BECKER. That’s correct. 

Senator FRANKEN. Let me ask you this—this is an unusual hearing, as I understand, and I’m fairly new to the Senate, but it was 

kind of impressed upon me that this is unique, really. That the 

only other hearing for an NLRB Board Member was for the Chair 

of the Board. So, this is unusual, and I guess this was really the 

result of the insistence of a member who put a hold on this process. 

Did that Senator, during all of these months and months, submit 

any of those written questions? 

Mr. BECKER. I do not believe so, Senator Franken. 

Senator FRANKEN. Really? I mean, he or she had months and 

months to do that, right? 

Mr. BECKER. That would have been correct, from July of last 

year. 

Senator FRANKEN. OK. 

Well, thank you for bringing your family here, and it’s nice to see 

you and again, as a member of four unions myself, I am someone 

who—while he was campaigning for this office—got his healthcare 

20 

from the American Federation of TV and Radio Artists. I really appreciate the work that everyone in your field does. Thank you. 

Thank you, Mr. Chairman. 

Mr. BECKER. Thank you. 

[The prepared statement of Senator Franken follows:] 

PREPARED STATEMENT OF SENATOR FRANKEN

Thank you, Mr. Chairman. I just want to very briefly express my 

support of today’s nominee, Mr. Craig Becker. 

As I said in Tuesday’s hearing, I am very pleased to have Mr. 

Becker before us as a nominee. He has devoted his entire career 

to educating others about the challenges faced by today’s ordinary 

workers. I very much admire his work and career. 

While Mr. Becker has faced much opposition, there is absolutely 

nothing in his background that precludes him from a seat on the 

National Labor Relations Board. Like all nominees to the NLRB, 

he has an extensive background in labor law. It’s true that during 

his career, he most frequently represented workers . . . but other 

nominees to the board have mostly represented management. This 

is simply not an issue. 

Mr. Becker has a wealth of experience and impressive credentials. The NLRB plays a vital role in ensuring worker protections, 

and Mr. Becker will be a valued addition to the board. Today, I 

urge my colleagues to support the confirmation of Mr. Becker. 

Thank you. 

The CHAIRMAN. Senator Franken, are your dues paid? 

Senator FRANKEN. [No response.] 

The CHAIRMAN. I will move on now. 

Senator FRANKEN. Three of them. Three of the unions. 

[Laughter.] 

The CHAIRMAN. Senator Casey. 

STATEMENT OF SENATOR CASEY

Senator CASEY. Thank you very much. 

Mr. Becker, thank you for your appearance here, and for the 

work you’ve put forth already to be confirmed. I know it’s a laborious, difficult process for anyone, but especially when your nomination is the subject of conflict and debate. And we’re grateful for 

the time you’ve spent. 

We’re also grateful for your willingness to serve. We don’t say 

that enough around here. And I know that when you make a commitment to serve it’s not—in most cases singular, you have a family that makes that commitment along with you. So we’re grateful. 

I wanted to ask you a couple of questions—I’ve always thought 

that when the Congress or in this case, the Senate, is making a determination about whether to confirm a nominee or not—and especially one who would be in a quasi-judicial role or decisionmaking 

role, where you have to make decisions based upon evidence and 

the presentation of evidence—that you ought to have a set of characteristics that would lead the Senate to confirm you. We confirm 

District Court judges, and Appellate Court judges, and U.S. Supreme Court Justices, and we also confirm a lot of other people 

who have similar jobs. 

21 

I’ve always thought that there was a series of considerations that 

should be weighed and analyzed. Obviously, someone’s experience 

is very important—you’ve had experience—is it 27 years? 

Mr. BECKER. I think it’s now 28 years. 

Senator CASEY. Twenty-seven years of experience which is vitally 

important to a position like this and to the confirmation process. 

So, I think experience is a very important factor, you’ve demonstrated that. 

I also believe that when you’re confirming someone to a position 

like the one that you’re seeking, the National Labor Relations 

Board, that it should be someone who has the kind of judgment or 

temperament—for a Federal Court judge we call it judicial temperament or something similar to that. And from the review that 

so many of us have undertaken with regard to your nomination, 

there’s nothing in the record that I would see that would, in any 

way, question that temperament or judgment, the objectivity that 

you would bring to the work that you have, even though you’ve 

been an advocate. We don’t confirm judges around here that are robots or mechanical beings. We confirm people that are human 

beings—that have a point of view—and know how to argue and 

battle and be advocates. 

I would hope that someone in your position would be someone 

like that. We want some people who understand what it’s like to 

advocate for a position. But that doesn’t mean that you can’t exercise a kind of objectivity that I think you can exercise. 

And finally, and we could add more to this list but I think certainly skill is very important. Experience is relevant, judgment and 

temperament is relevant, but skill is very important. I think that’s 

obvious from your record. 

In conclusion, about the main assertion against your nomination. 

That because you have been an advocate in the labor-management 

field where, in some ways, it’s a unique field in that you don’t 

want—those who are on the management side or the labor side— 

to have conflicts of interest. That’s the nature of that engagement. 

So, I guess I’d ask you the main question which is, on that question of objectivity and on that question of the kind of temperament 

and approach you bring to decisionmaking, in light of your role as 

an advocate for the men and women of organized labor, how do you 

respond to that? I know this is probably the 444th time you’ve done 

this but—— 

Mr. BECKER. Two hundred and eighty, I think, was the case. 

That is obviously a very important question, and the ability to 

be fair and impartial is, of course, absolutely critical to the integrity of the Board. Maybe it would be best to answer based on some 

of my experiences. When I graduated from law school, I worked for 

the then-Chief Judge of the 8th Circuit, Donald Lay. I watched the 

adjudicative process, and it was a process, obviously where, in the 

Courts of Appeals or judges appointed by different Presidents, have 

to talk to one another, have to come to a conclusion. Judge Lay had 

been a trial lawyer, plaintiff ’s side trial lawyer in Omaha, NE before he was on the bench. He came to the bench as a very accomplished advocate and yet was able to set aside that role once he became a judge. 

22 

I watched him and saw how his experiences enriched his ability 

to be a judge, but were separated from his being a judge. And I 

think that experience is an inspiration to me and a model for me— 

the fact that I’ve played different roles already in my career. It’s 

very different to stand in front of a class and have to explain labor 

law and the different interests that are at issue in labor law and 

the various provisions and how they fit together or sometimes come 

into conflict then to advocate a particular position before the Board 

or in court. You have to be able to understand that those are different roles. 

I’ve moved from one role to another, and I think that has prepared me to move to yet another. I completely understand that if 

I’m confirmed the role I will play will be different from those roles, 

and I look forward to that. 

Senator CASEY. Thank you very much. 

Mr. BECKER. Thank you. 

The CHAIRMAN. Thank you very much, Senator Casey. 

Just a couple of things here to wrap it up. I know that a few 

members have come in and expressed a desire to submit additional 

questions for the record. Any questions—and I say that to the staff 

who are here since there are no other Senators here except Senator 

Casey, of course, and me—but any questions to be submitted must 

be submitted prior to 10 a.m. tomorrow. Must be submitted prior 

to 10 a.m. so that Mr. Becker will have adequate time to reply before Thursday’s markup. 

There will be a markup of this committee in this room at 10 a.m. 

on Thursday, to report out Mr. Becker’s nomination. I want to 

point out that Mr. Becker has already responded, as I said, to more 

than 280 written questions. He has always made himself available 

to meet with any member who wished and has now appeared before us for this virtually unprecedented hearing. 

So, any questions and I am hopeful that they will be limited in 

terms of the number. I hope we don’t see another couple of hundred 

questions submitted. 

Regardless, the hearing will go forward at 10 a.m. on Thursday. 

So, Mr. Becker, again I want to congratulate you. I’m sorry—I have 

one final question I have to ask for the record. Just to confirm, consistent with your ethics pledge, will you recuse yourself from matters in which your former client, the Service Employees International Union, is a party for 2 years? 

Mr. BECKER. Yes, I will, Senator Harkin. 

The CHAIRMAN. Well, Mr. Becker, thank you very much. First of 

all, in many ways, perhaps this was a good hearing, so that people 

could see—both on television, on the internal C-Span network here 

at the Senate—so people could see that you are indeed a very calm, 

informed, judicious and accomplished individual. 

I congratulate you on your history, on what you’ve done in your 

life. I can say to your two sons and your wife, you’ve got to be very 

proud of Craig Becker. I say that as someone who comes from a 

working-class family, someone whose own immediate members of 

my family have been mistreated in ways that I won’t go into, on 

their job, and so those who represent working people and who represent them in terms of helping them secure their rights—their 

rights under law—to me, I can think of no better calling than that. 

23 

I’m very proud of you, Mr. Becker, and I’m proud you’re going to 

be on the National Labor Relations Board. We will report this out 

on Thursday. I don’t know what the floor will be like, but I can assure you that we will move this as expeditiously as possible on the 

floor, and get you down there so you can get to work. We’ve only 

got two members, it’s about time this Board starts doing things and 

addressing the backlog. 

So, I thank you very much. 

Mr. BECKER. Thank you, Senator Harkin. 

The CHAIRMAN. Thank you, congratulations. 

The committee will stand adjourned until 10 a.m. on Thursday. 

[Additional material follows.] 

24 

ADDITIONAL MATERIAL 

RESPONSE TO QUESTIONS OF SENATOR ENZI BY HAROLD CRAIG BECKER

Question 1. An article in The Nation magazine this weekend supporting your confirmation noted that labor law changes in many areas could be made without congressional action. Could NLRB take action to impose a deadline of, for example, 10 

or 15 days, in which to hold certification elections? 

Answer 1. Section 9 of the Act vests in the Board broad authority to conduct and 

regulate representation elections. Subject to the constraints of the principle of stare 

decisis and the requirements of the Administrative Procedure Act, where applicable, 

the Board could make changes in election procedures and rules if it determined, 

after appropriate deliberation, that they were consistent with Congress’ intent and 

would improve the election process. The statute does not establish a specific time 

period during which elections must be conducted, but section 9(c) requires that before an election can be held, the Board must provide for ‘‘an appropriate hearing 

upon due notice.’’ 

Question 2. Would you ever support imposing such a certification election deadline? 

Answer 2. If I am confirmed as a member of the NLRB, I will not assume the 

position with any preconceived agenda as to such questions of administration. 

Whether I would ever support imposing any form of deadline of the sort you describe would depend on the arguments, both in favor and against doing so, properly 

addressed to the Board; the evidence relevant to the impact of such an action; the 

views of the Board’s career staff, particularly staff in the representation unit and 

in the regional offices who actually conduct elections; and any other considerations 

relevant to the particular proposal at the time it is made. In evaluating any such 

proposal, I would also consider, among other factors, the number and complexity of 

issues the Board must resolve prior to conducting elections, the nature of the proceedings required to resolve the issues, and the difficulty of preparing to conduct 

elections. 

Question 3. The same article stated that NLRB could act under current law to 

require an employer to turn over employee personal contact information in any 

union organizing drive. Does NLRB have the ability to make this requirement under 

current law? 

Answer 3. Under current Board precedent, upheld by the Supreme Court, employers are required to provide to a petitioner labor organization the names and addresses of employees after the direction of an election. See Excelsior Underwear, 156 

NLRB 1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Current 

NLRB procedures require that an employer prepare a list of eligible voters and their 

addresses for an NLRB-conducted representation election and file it with the 

NLRB’s regional director who then makes the list available to all parties, including 

individuals and/or labor organizations which have filed a representation petition or 

intervened in the proceedings. See NLRB Casehandling Manual paragraph 11312.1. 

If I am confirmed as a member of the NLRB and if the Board is presented with 

an argument that the standards governing the requirement to make a list of employees’ names and addresses available to a labor organization seeking to represent 

the employees could and should be altered, I will consider it with an open mind 

based on the terms of the act and relevant Supreme Court precedents. Because 

questions concerning these issues could arise before the Board, I do not believe it 

would be appropriate to address them further in this context. 

Question 4. Would you ever support requiring an employer to turn over employee 

personal contact information in any union organizing drive, either through rulemaking or Board decisions? 

Answer 4. Please see my answer to question 3. 

Question 5. The article also declared that NLRB could require inside the workplace access for union organizers during campaigns. Could NLRB require inside the 

workplace access for union organizers? 

Answer 5. In Lechmere, Inc. v. NLRB, 502 U.S. 527, 535 (1992), the Court held 

that absent discrimination, nonemployee union organizers are not entitled to access 

to an employer’s private property except in the ‘‘rare’’ case where ‘‘the inaccessibility 

of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels’’—for example, where the employees 

work at a remote logging camp. Unless Congress amends the statute to overrule 

that decision, the Board is bound to follow it. 

25 

Question 6. If you are confirmed, would you ever support interpreting NLRA to 

allow inside the workplace access to union organizers? 

Answer 6. Absent a claim of discrimination, I believe that the Supreme Court’s 

decisions in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), and NLRB v. Babcock 

& Wilcox Co., 351 U.S. 105 (1956), preclude the Board from construing the act to 

require employers to grant nonemployee union organizers access to their property 

when the union has a reasonable ability to communicate with employees off the 

property. Nevertheless, if I become a member of the NRLB and an argument that 

the Board can and should require employers to grant such access under some set 

of circumstances is made to the Board, I will consider it with an open mind based 

on the terms of the act and relevant Supreme Court precedents. 

Question 7. The Nation article proposed that NLRB could act without new statutory authority to increase penalties on employers for NLRA violations. Does NLRB 

have the power to increase penalties under current law? 

Answer 7. Congress has vested the Board with specific remedial authority in section 10 of the Act. The NLRB has authority to fashion new remedies consistent with 

section 10 and relevant Supreme Court precedent. Outside those bounds, use of new 

remedies must be authorized by Congress. I do not believe the Board has authority 

to award double or triple back pay as a remedy for a violation of section 8(a)(3) 

without congressional action, nor do I believe that section 10 of the Act currently 

vests in the Board the authority to impose civil penalties. However, if I am confirmed as a member of the NLRB and if an argument that the Board has and should 

exercise such authority is presented to the NLRB, I will consider the argument with 

an open mind based on the terms of the act and relevant Supreme Court precedent, 

and with due regard for the principle of stare decisis and the importance of stability 

in the law and respect for parties’ legitimate reliance on existing law. 

Question 8. Would you support exercising any ability to increase penalties on employers, either through rulemaking or Board decisions? 

Answer 8. Please see my answer to question 7. 

Question 9. Under the Gissel decision, in cases of employer misconduct the NLRB 

may impose a duty to bargain, even if there is no showing that a majority of employees want to unionize. Do you believe Gissel could be applied more broadly under current law? 

Answer 9. As you note, the Supreme Court held in NLRB v. Gissel Packing Co., 

395 U.S. 575 (1969), that under appropriate circumstances an order that an employer bargain with a union is a lawful and appropriate remedy for employer unfair 

labor practices that prevent the conduct of a fair election. If I am confirmed as a 

member of the Board and if an argument for changing the current standards for 

issuance of Gissel bargaining orders is made to the Board, I will evaluate the argument with an open mind based on the terms of the statute and relevant Supreme 

Court precedent and with due regard for the principle of stare decisis and the importance of stability in the law and respect for parties’ legitimate reliance on existing 

law. 

Question 10. Would you support broadening Gissel absent any changes to the statute? 

Answer 10. Please see my answer to question 9. 

Question 11. Is it possible to impose mandatory binding interest arbitration under 

the current NLRA and existing precedent? 

Answer 11. Under current law, employers and unions may voluntarily agree to 

submit contract issues they have been unable to resolve through bargaining to binding arbitration. However, the Supreme Court has stated that ‘‘allowing the Board 

to compel agreement when the parties themselves are unable to agree would violate 

the fundamental premise on which the act is based.’’ H.K. Porter Co. v. NLRB, 397 

U.S. 99, 107–108 (1970). Thus, in my view, it would not be possible to require binding arbitration of contract disputes under the current law and existing precedents. 

Question 12. Would you ever support imposing mandatory binding interest arbitration without new congressional authority, either through rulemaking or a Board 

decision? 

Answer 12. Please see my answer to question 11. Nevertheless, if I am confirmed 

as a member of the NLRB and if an argument that the Board could impose mandatory binding interest arbitration is made to the Board, I will consider it with an 

open mind based on the terms of the act and relevant Supreme Court precedents. 

26 

Question 13. How do you define the term ‘‘secret ballot election’’ as used in the 

NLRA? Under your definition, what specific safeguards must be in place to preserve 

the secrecy of the ballot? 

Answer 13. The act does not define the term ‘‘secret ballot election.’’ In general, 

a secret ballot election has been understood to be an election in which voters cast 

their ballot in a manner such that no one can see or otherwise determine how any 

individual voter marked his or her ballot and in which that secrecy is maintained, 

to the extent possible, throughout the election and any post-election proceedings. 

The Board and Federal Courts of Appeals have developed an extensive jurisprudence concerning what steps are necessary to insure the secrecy of the ballot and 

what actions constitute objectionable conduct, requiring that the election be rerun, 

on the grounds that they interfered with the secrecy of the ballot. Because questions 

concerning these issues could arise before the Board, I do not believe it would be 

appropriate to address them further in this context. 

Question 14. What specific metrics do you believe the Board should be judged on? 

For example, do you believe the Board should be evaluated on whether or how long 

it takes employers and unions to agree to first contracts after a Board-supervised 

election? Can you please also explain why the metrics you identify are appropriate 

under the National Labor Relations Act? 

Answer 14. The Board should be judged based on its fidelity to Congress’ intent 

as expressed in the National Labor Relations Act, as amended, and on how effectively it implements the policies Congress intended to effectuate through the act. 

Identifying specific metrics to use in judging the Board is difficult given the numerous functions performed by the Board, the various policies Congress intended to effectuate through the act, and the roles other parties, for example, the Board’s General Counsel and the Federal Courts of Appeal, play under the act. Reliance on a 

single metric or set of metrics has the potential to create incentives to improve performance as judged by the metric even under circumstances where doing so is not 

consistent with Congress’ intent and does not effectuate the policies Congress intended to effectuate through the act. If I am confirmed, I intend to fully inform myself concerning what metrics the Board currently employs before drawing any conclusions about which metrics are most appropriate. 

RESPONSE TO QUESTIONS OF SENATOR BURR BY HAROLD CRAIG BECKER

Question 1. Do you believe the NLRB must maintain an online database of all 

card check recognitions and any subsequent union decertification elections? 

Answer 1. The National Labor Relations Act does not require that the NLRB 

make any particular data publicly available, but I am not at this point familiar with 

any other statutory or other requirements that may be applicable. If confirmed, it 

would certainly be my intent to comply with any such requirements. I am aware 

that the Board has historically and continues to maintain publicly available data 

on elections and unfair labor practice proceedings, and that this data is increasingly 

available on the Board’s Web site. If confirmed, I would be supportive of that effort. 

Question 2. Do you support ‘‘voluntary unionism,’’ i.e., that employees have the 

right to voluntarily choose to participate in unions or refrain from doing so? 

Answer 2. Yes. The act vests in employees the right to self-organization and to 

form, join, or assist labor organizations and the right to refrain from doing any and 

all of such activities with the limited exception provided in section 8(a)(3) as modified by section 14(b). If I am confirmed, I will faithfully apply those provisions of 

the law. 

Question 3. Do you believe that a secret ballot election better reflects the true 

freedom of choice guaranteed workers by Section 7 of the NLRA to engage in collective bargaining or to refrain from doing so? 

Answer 3. Please see my answer to Senator Alexander’s July 30, 2009, Question 

25: 

‘‘I believe the answer to that question depends on the procedures used to conduct the secret ballot election or card check process, the rules governing each, 

and the legal consequences that attach to their outcomes. Because questions 

concerning whether a secret ballot election is a superior mechanism to the card 

check process may arise before the Board, for example, in the context of a decision whether to order a rerun election or issue a bargaining order based on a 

card showing of majority support, I do not believe it would be appropriate to 

address them further in this context.’’ 

27 

Question 4. Do you agree with the Supreme Court that ‘‘[b]y its plain terms, . . . 

the NLRA confers rights only on employees, not on unions or their nonemployee organizers.’’ Lechmere, Inc. v. NLRB, 502 U.S. 527, 532 (1992). 

Answer 4. The Board is bound by the holding in Lechmere. In Lechmere, the Supreme Court construed the terms of section 7 of the Act which vests rights in ‘‘employees.’’ In the context of the statement provided by the Supreme Court in 

Lechmere, I agree that section 7 expressly vests rights only in employees. Other provisions of the act vest rights in labor organizations and employers, for example, section 9 which permits both labor organizations and employers to file petitions for an 

election under specified circumstances. 

Question 5. Do you fully support the North Carolina Right To Work law—N.C. 

Gen. Stat. §§95–78 to 84? Would you use your position at NLRB to challenge any 

aspect of this law or its prior interpretation? 

Answer 5. Section 14(b) of the Act permits States to enact laws that prohibit the 

execution or application of agreements requiring membership in a labor organization as a condition of employment. If I am confirmed, I will faithfully apply that 

provision of the NLRA, and I will fully respect any law that North Carolina has enacted pursuant to the permission contained in NLRA §14(b). Accordingly, I would 

not, nor could I, use my position to challenge any such law. 

RESPONSE TO QUESTIONS OF SENATOR ISAKSON BY HAROLD CRAIG BECKER

Question 1. I understand from your testimony today that you will recuse yourself 

from any cases involving the Service Employees International Union. Will you also 

recuse yourself from cases involving SEIU locals? 

Answer 1. In the course of my work for SEIU, I have represented a small number 

of local unions affiliated with SEIU. Pursuant to 5 CFR 2635.502, for a period of 

1 year after I last provided services to a former client, including any such locals, 

I will not participate in any particular matter involving specific parties in which a 

former client is or represents a party, unless I am first authorized to participate, 

pursuant to 5 CFR 2635.502(d). In addition, I understand that as an appointee I 

am required to sign the Ethics Pledge under Executive Order No. 13490 and that 

I will be bound by the requirements and restrictions therein in addition to the requirements of 5 CFR 2635.502. Accordingly, 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 a former client as those terms 

are defined in Executive Order No. 13490, including any such locals, unless I am 

first authorized to participate, pursuant to Executive Order No. 13490 Sec. 3. I have 

entered into an ethics agreement with the National Labor Relations Board to fully 

abide by both of these sets of restrictions. Moreover, if 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. Finally, in any 

such case where there is no actual conflict but my participation might be perceived 

as creating an appearance of conflict, I will consult with agency ethics officials and 

review applicable rules and precedents to determine whether recusal under the particular circumstances presented would be appropriate. 

Question 2. Do you believe the NLRB has the authority under current law to compel a non-union employer to bargain with a union in the absence of a secret-ballot 

election? 

Answer 2. The National Labor Relations Act was amended in 1947 to give employers the right to petition for a secret-ballot election if presented with a demand for 

recognition by a labor organization. This right is specified in Section 9(c)(1)(B) of 

the Act and cannot be changed except by Congress. The Supreme Court has held, 

however, that where an employer has engaged in unfair labor practices ‘‘likely to 

destroy the union’s majority and seriously impede the election’’ the employer may 

not insist on an election and can be ordered by the Board to bargain. NLRB v. 

Gissel Packing Co., 395 U.S. 575, 600 (1969). 

Question 3. You stated today that that the SEIU is not party to many NLRB 

cases. Do you know how many cases in the current NLRB backlog are ones in which 

SEIU is a party? 

Answer 3. I am not personally aware of any cases in which SEIU is a party currently pending before the NLRB itself and a review of available public records does 

not reveal any. There are a small number of cases pending before the Board in 

28 

which a local labor organization affiliated with SEIU and currently in trusteeship, 

as that term is used in 29 U.S.C. 462, is a party. 

Question 4. What is your opinion of the National Labor Relations Board’s obligation to follow precedent? Are the Board’s prior decisions controlling for future cases? 

Are there any existing decisions that you believe the Board decided improperly and 

should be revisited? What standard would you apply in determining whether to 

overrule a prior Board decision? 

Answer 4. I think the NLRB, like other adjudicatory agencies, should respect its 

own precedent and the rule of stare decisis. I think the Board should respect parties’ 

legitimate reliance on past precedent to guide their actions. I think that the Board 

should not depart from its own precedent without citing that precedent and openly 

acknowledging that it is overruling past precedent. I think that when the Board decides to overrule prior precedent it should do so expressly and only after fully explaining the basis of its decision. 

I believe that is the standard applied to the Board in the courts of appeals and 

it is the standard I would apply in considering whether to overrule a prior Board 

decision. 

Because the question of whether a particular decision was incorrect and should 

be overruled may arise before the Board, I do not believe it would be appropriate 

to address the question in this context. 

Question 5. What specific metrics do you believe the Board should be judged on? 

For example, do you believe the Board should be evaluated on whether or how long 

it takes employers and unions to agree to first contracts after a Board-supervised 

election? Can you please also explain why the metrics you identify are appropriate 

under the National Labor Relations Act? 

Answer 5. The Board should be judged based on its fidelity to Congress’ intent 

as expressed in the National Labor Relations Act, as amended, and on how effectively it effectuates the policies Congress intended to effectuate through the act. 

Identifying specific metrics to use in judging the Board is difficult given the numerous functions performed by the Board, the various policies Congress intended to effectuate through the act, and the roles other parties, for example, the Board’s General Counsel and the Federal courts of appeal, play under the act. Reliance on a 

single metric or set of metrics has the potential to create incentives to improve performance as judged by the metric even under circumstances where doing so is not 

consistent with Congress’ intent and does not effectuate the policies Congress intended to effectuate through the act. If I am confirmed, I intend to fully inform myself concerning what metrics the Board currently employs before drawing any conclusions about which metrics are most appropriate. 

Question 6. I understand from your response to me today that the change from 

certification by secret ballot to certification by card check requires congressional action. However, there are multiple sections of the Employee Free Choice Act. Which 

provisions of EFCA could be implemented without congressional action? Which provisions require congressional action? 

Answer 6. The Employee Free Choice Act has three substantive sections. The first 

section establishes a procedure by which a union could be certified as a bargaining 

representative on the basis of signed authorization cards. As I stated at the hearing, 

this change would require action by Congress and could not be accomplished administratively. 

The second section establishes procedures for mediation and, if necessary, binding 

arbitration in circumstances where a union or employer engaged in bargaining for 

a first contract are unable to reach agreement. Under current law, employers and 

unions may voluntarily agree to submit contract issues they have been unable to 

resolve through bargaining to binding arbitration. However, the Supreme Court has 

stated that ‘‘allowing the Board to compel agreement when the parties themselves 

are unable to agree would violate the fundamental premise on which the act is 

based.’’ H.K. Porter Co. v. NLRB, 397 U.S. 99, 107–108 (1970). Thus, action by Congress would also be required to implement these procedures. 

The third and final section of EFCA would establish civil penalties and a treble 

back pay remedy for certain unfair labor practices, and require the Board to seek 

injunctions where it finds reasonable cause to believe certain violations of the act 

have occurred. Congress has vested the Board with specific remedial authority in 

section 10 of the Act. The NLRB has authority to fashion new remedies consistent 

with section 10 and relevant Supreme Court precedent. Outside those bounds, use 

of new remedies must be authorized by Congress. Section 10(c) vests in the Board 

authority to order a party to take affirmative action, including re-instatement with 

or without back pay. I do not believe the Board has authority to award double or 

29 

triple back pay as a remedy for a violation of section 8(a)(3) without congressional 

action nor do I believe that section 10 currently vests in the Board the authority 

to impose the penalties discussed above. However, if I am confirmed as a member 

of the NLRB and if an argument that the Board has and should exercise such authority is presented to the NLRB, I will consider the argument with an open mind 

based on the terms of the Act and relevant Supreme Court precedent, and with due 

regard for the principle of stare decisis and the importance of stability in the law 

and respect for parties’ legitimate reliance on existing law. 

As for the ability to seek injunctive relief, section 10(j) of the current Act provides 

that the Board has power to seek an injunction in any case where a complaint issue 

alleging the statute has been violated, therefore, it is currently within the discretion 

of the Board to decide in any particular case whether it will petition in Federal district court for an injunction. Of course, only Congress can require that the Board 

do so under the circumstances specified in the EFCA. 

Question 7. Recently, in The Nation magazine, Dmitri Iglitzin, an attorney that 

has represented the AFL–CIO, wrote: 

‘‘Most legal scholars and labor experts believe that the NLRB has the authority to enact procedural changes that could, among other things: 

• drastically shorten the timeframe for holding union elections; 

• eliminate cumbersome pre-election procedures that allow employers to dispute who is eligible to vote in such elections; 

• require the employer to turn over employee names, addresses and phone 

numbers early in any union organizing drive; 

• require equal access to both workers and the workplace for unions during 

campaigns; and 

• increase the penalties on companies that violate their workers’ legal rights.’’ 

In which of these items, in your opinion, could be accomplished without congressional action? 

Answer 7. It is my understanding that Dmitri Iglitzin has never represented the 

AFL–CIO in any matter. 

With regard to the suggestion that the Board ‘‘could drastically shorten the timeframe for holding union elections,’’ I would note that the Board is constrained in 

that regard by the current statutory requirement in section 9(c) that before an election can be held, the Board must provide for ‘‘an appropriate hearing upon due notice.’’ This hearing requirement is often cited as the primary reason for the time it 

currently takes to schedule and conduct a Board election. Only congressional action 

could eliminate the hearing requirement. The statute does not establish any specific 

time period during which such elections must be conducted except the hearing requirement described above. 

With regard to the suggestion that the Board could ‘‘eliminate cumbersome preelection procedures that allow employers to dispute who is eligible to vote in such 

elections,’’ as explained above, section 9(c) requires that the Board provide for ‘‘an 

appropriate hearing upon due notice’’ prior to directing an election. That pre-election 

procedure cannot be eliminated without congressional action. 

With regard to the suggestion that the Board could require ‘‘equal access,’’ in 

Lechmere, Inc. v. National Labor Relations Board, 502 U.S. 527, 535 (1992), the 

Court held that absent discrimination, nonemployee union organizers are not entitled to access to an employer’s private property except in the ‘‘rare’’ case where ‘‘the 

inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels’’—for example, 

where the employees work at a remote logging camp. Unless Congress amends the 

statute to overrule that decision, the Board is bound to follow it. 

With regard to requiring employers to turn over contact information for employees, under current Board precedent, upheld by the Supreme Court, employers are 

required to provide to a petitioner labor organization the names and addresses of 

employees after the direction of an election. See Excelsior Underwear, 156 NLRB 

1236 (1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). Current NLRB procedures require that an employer prepare a list of eligible voters and their addresses 

for an NLRB-conducted representation election and file it with the NLRB’s regional 

director who then makes the list available to all parties, including individuals and/ 

or labor organizations which have filed a representation petition or intervened in 

the proceedings. NLRB Casehandling Manual paragraph 11312.1. The Court held 

that the promulgation of such a requirement was a proper exercise of the Board’s 

authority to oversee the conduct of elections. Because questions concerning whether 

the Board has authority to, in any manner, alter the timing or preconditions for imVerDate Nov 24 2008 14:28 Dec 20, 2010 Jkt 035165 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 S:\DOCS\54758.TXT DENISE
30 

position of such a requirement may arise before the Board, I do not believe it would 

be appropriate to address them specifically in this context. 

Finally, with regard to penalties on employers who violate their workers’ rights, 

please see my response to your Question 6. 

RESPONSE TO QUESTIONS OF SENATOR MCCAIN BY HAROLD CRAIG BECKER

Question 1. Please describe the nature of your involvement in organizing home 

health-care and/or home day-care workers in any way. What mechanisms (e.g., card 

check or elections) were used to organize these workers in each State? 

Answer 1. I have provided legal counsel to SEIU and, in some cases, to local labor 

organizations affiliated with SEIU, concerning their efforts to assist home healthcare workers to organize and engage in collective bargaining. I have had no similar 

involvement in relation to home day-care workers. In the States in relation to which 

I have provided some such legal counsel and in which home-care workers were able 

to make a choice concerning whether they wished to be represented and have subsequently engaged in collective bargaining, including California, Illinois, Michigan, 

Ohio, and Washington, the mechanism through which the choice was made was an 

election to the best of my knowledge. 

Question 2. Mr. Becker, as counsel to the SEIU, you are familiar are you not with 

the dispute between the SEIU International and the National Union of Healthcare 

Workers formed by ousted members of an SEIU local in California? 

Answer 2. I am aware that there is a controversy involving SEIU and the National Union of Healthcare Workers. 

Question 3. Are you aware that the NUHW has petitioned the NLRB to hold elections at dozens of health care facilities where workers are currently represented by 

the SEIU? 

Answer 3. Although I have had no personal involvement in the matters, I am 

aware that petitions have been filed seeking elections at some facilities where employees are currently represented by a local labor organization affiliated with SEIU 

which is currently in trusteeship, as that term is used in 29 U.S.C. § 462. 

Question 4. And you know that some of those elections have been blocked by 

charges of unlawful conduct filed by the SEIU against the NUHW with the NLRB 

General Counsel? 

Answer 4. Although I have had no personal involvement in the matters, I am 

aware that some unfair labor practice charges have been filed that may have 

blocked some elections for some periods of time. 

Question 5. All of these petitions and the unlawful conduct charges are likely to 

come before the NLRB. Do you intend to recuse yourself from all those cases? 

Answer 5. Yes. 

Question 6. Have you ever performed work for and/or provided advice to ACORN 

or ACORN-affiliated groups while employed by your current employers or on a volunteer basis? Did you perform such work in prior positions? Please describe the nature of that work. 

Answer 6. No. 

Question 7. Have you ever met with or spoke to Mr. Wade Rathke? Have you 

worked with and/or provided advice to Mr. Rathke or Service Employees International Union (SEIU) Locals 880 or 100 or their officials/members? 

Answer 7. I am not certain whether I have ever met or spoken with Mr. Rathke, 

but if I believe it would have been on a casual, unplanned, nonprofessional basis. 

I have never worked with or provided advice to Mr. Rathke or SEIU Local 100 or 

its officials or members. I have worked with and provided advice to SEIU Local 880 

(now merged with two other locals into SEIU Healthcare Illinois-Indiana) and its 

members. I have worked with officials of Local 880, but never provided them advice 

as individuals. 

Question 8. Mr. Rathke has noted your success in crafting and executing legal 

strategies for SEIU throughout your career. He has stated: 

‘‘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. . . . His role was 

often behind the scenes devising the strategy with the organizer and lawyers, 

31 

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.’’ 

http://chieforganizer.org/2009/04/30/becker-to-the-nlrb/. What specific legal strategies was he referencing? 

Please provide a copy of all briefs or memos you authored in this area as referenced by Mr. Rathke. 

Answer 8. I am not certain what Mr. Rathke was referring to in the quoted statement. The protection of home health-care workers under the National Labor Relations is well established if they are employed by a private agency. Mr. Rathke might 

have been referring to several briefs I have written concerning the coverage of home 

health-careworkers under the Fair Labor Standards Act. The most recent brief I 

wrote in that area was in the case of Long Island Care at Home, Inc. v. Coke, 551 

U.S. 158 (2007). I have already provided a copy of that brief to the committee. Mr. 

Rathke might also have been referring to counsel I have provided to SEIU concerning the Union’s efforts to assist home-care workers employed in a variety of 

publicly funded programs to organize and engage in collective bargaining under 

State law. In many States, the employment status of such workers has been uncertain because the duties and obligations of employers are split among several parties 

with respect to these workers. Often the State or other public entity sets the hourly 

wage and the hours of work of the home-care workers, but the consumers whom 

they care for hire, supervise and can terminate the workers. As a result, there have 

been conflicting decisions under a variety of labor and employment laws in various 

States concerning which entities had which obligations under those laws (for example, to insure compliance with wage and hour law, to pay unemployment insurance, 

to obtain workers’ compensation insurance, and to engage in collective bargaining 

if the workers duly select a representative). I have provided advice and counsel to 

SEIU (and in some cases to local labor organizations affiliated with SEIU) in relation to its efforts to assist such home-care workers who wanted to organize to do 

so and to obtain recognition for their chosen representative from the State or other 

public entity which could engage in meaningful bargaining with the home-care 

workers about the terms of their employment. 

Question 9. To the extent Mr. Rathke’s statement regarding your having written 

briefs for others to file is correct, please provide a list of all briefs or pleadings you 

wrote for other parties to file (if any) and list the courts or administrative agencies 

in which they were filed. 

Answer 9. I have described all briefs and pleadings that Mr. Rathke might have 

been referring to in my answer to Question 9. 

Question 10. Have you discussed labor law or SEIU efforts to organize or obtain 

collective bargaining rights for 37,000 home health-care workers with former Governor Blagojevich or any members of his staff? Did you have any role in developing 

legislation, Executive orders or other advice to assist SEIU or Governor Blagojevich 

with organizing home health-care workers or other workers in Illinois? Please provide details and specific pieces of legislation, Executive orders or memos you worked 

on. 

Answer 10. As I testified in response to your question at my confirmation hearing 

on February 2, 2010, while I was in practice in Illinois, I represented and provided 

counsel to one of the local labor organizations affiliated with SEIU in Illinois which, 

for a period of time long preceding the Blagojevich administration, had been working to organize home-care workers. As explained in my answer to your Question 9, 

in many States, the employment status of such workers has been uncertain because 

the duties and obligations of employers are split among several parties with respect 

to these workers. Often the State or other public entity sets the hourly wage and 

the hours of work of the home-care workers, but the consumers whom they care for 

hire, supervise and can terminate the workers. As a result, there have been conflicting decisions under a variety of labor and employment laws in various States 

concerning which entities had which obligations under those laws (for example, to 

insure compliance with wage and hour law, to pay unemployment insurance, to obtain workers’ compensation insurance, and to engage in collective bargaining if the 

workers duly select a representative). In Illinois, the agency which administers the 

State’s public sector collective bargaining law had declined to assume jurisdiction 

over a petition concerning the representation of home-care workers. I was party to 

discussions of this matter with representatives of several prior administrations in 

Illinois. After Governor Blagojevich was elected, I had discussions with members of 

his staff, and on one occasion, I participated in a discussion that included the Governor. My discussion with the members of the Governor’s staff and with the Governor had to do with the legal technicalities involved in the drafting of an executive 

32 

order and legislation, eventually adopted by both houses of the State legislature, 

which extended collective bargaining to home-care workers. I participated in these 

discussions because of my expertise in this area, having previously provided counsel 

concerning similar legislation in California which was adopted by the legislature 

and signed by a Republican Governor. 

Question 11. According to the Wall Street Journal, a second Executive order contemplated by former Governor Blagojevich was designed to enable the SEIU to organize workers in the State who care for developmentally disabled people in their 

homes. Did you have any involvement in preparing or developing a reported second 

Executive order for Governor Blagojevich to expand organizing to this group? Did 

you have any involvement with the development of Executive Order 15–2009, signed 

by Illinois Governor Pat Quinn on June 26, 2009 to allow organizing of these workers? Have you been involved with the SEIU organizing campaign that began after 

Governor Quinn’s executive order was signed? Please describe the nature of any involvement. 

Answer 11. I have had no involvement with these matters. 

Question 12. Have you ever had any interactions or relationships with the Long 

Term Care Housing Corp., the Homecare Workers Training Center or their officers, 

directors, employees or affiliates? 

Answer 12. No. 

Question 13. Have you been involved in any manner with the State bills/laws that 

allow card check organizing in New York, New Mexico, Illinois, New Jersey, New 

Hampshire, Oregon, and Massachusetts? Please describe the nature of your involvement. 

Answer 13. No. 

Question 14. Enshrined in our Constitution, and implemented in numerous statutes, Executive orders, and court decisions, is our Nation’s recognition of the status 

of Indian tribes as ‘‘domestic dependent’’ sovereign governments. In fact, our Nation 

has long acknowledged its great moral duty toward these sovereign tribes contains 

a ‘‘trust responsibility’’ to protect and encourage tribal governments. However, as 

you may know, in 2004, the NLRB overruled 30 years of precedent and held the 

NLRA applicable to a tribally-owned enterprise located on tribal lands. Therefore, 

as I read this decision, the NLRB believes it can countermand the laws and policies 

we have enacted to support tribal employment laws, like tribal employment rights 

laws. These laws are critically important on the reservation, which have struggled 

to create employment opportunities for Indians. Do you agree with this San Manuel 

decision? What Federal law principles can justify this decision? 

Answer 14. Because questions concerning the application of the NLRA to enterprises located on tribal lands may come before the Board, I do not believe it would 

be appropriate to address them in this context. 

Question 15. I am very concerned that, unless the San Manuel decision is overturned, it could apply to many other entities operating on Indian tribal lands—including schools, hospitals, construction crews, etc., especially if the current Congress 

were to actually enact the so-called ‘‘Employee Free Choice Act’’. Many in Congress, 

including Senator Inouye, Indian Affairs Committee Ranking Member Senator John 

Barrasso, Congressmen Dan Boren and Tom Cole and others have urged that the 

governmental status of Indian tribes be respected if the EFCA bill proceeds. What 

are your thoughts on this? 

Answer 15. Please see my answer to Question 14 above. To the extent this question concerns issues beyond the scope of the NLRA as currently written, it is appropriately addressed by Congress. 

Question 16a. Have you ever spoken to Andy Stern or any person affiliated with 

the SEIU as to what the SEIU’s expects from you if you are confirmed for a seat 

on the National Labor Relations Board? 

Answer 16a. No, at no time have I discussed with any person any action I would 

or would not take as a member of the Board. 

Question 16b. With whom did you speak and what did they say? 

Answer 16b. Please see my prior answer. 

Question 17a. Have you spoken with any person affiliated with the AFL–CIO as 

to what the AFL–CIO’s expectations are for you if you are confirmed for a seat on 

the National Labor Relations Board? 

33 

Answer 17a. No, at no time have I discussed with any person any action I would 

or would not take as a member of the Board. 

Question 17b. With whom did you speak and what did they say? 

Answer 17b. Please see my prior answer. 

Question 18a. Have you discussed with Andy Stern or any person affiliated with 

the SEIU or the AFL–CIO Board decisions that SEIU or the AFL–CIO would like 

to see reversed? 

Answer 18a. No, at no time have I discussed with any person any action I would 

or would not take as a member of the Board. 

Question 18b. With whom did you speak and what decisions did they say they 

wanted to see reversed? 

Answer 18b. Please see my prior answer. 

Question 19a. Have you discussed with Andy Stern or any person affiliated with 

the SEIU or the AFL–CIO how provisions of the Employee Free Choice Act could 

be administratively adopted by the Board either through rulemaking or Board decisions. 

Answer 19a. No, at no time have I discussed with any person any action I would 

or would not take as a member of the Board. 

Question 19b. With whom did speak and what did they say? 

Answer 19b. Please see my prior answer. 

Question 20. Have you played any role in the public statements issued by the 

SEIU and the AFL–CIO critical of Board decisions issued during the past 10 years? 

If yes, statements involving which decisions? 

Answer 20. I may have given legal counsel to SEIU and the AFL–CIO concerning 

public statements critical of Board decisions issued during the past 10 years. I cannot, however, recall giving such legal counsel relating to specific statements involving specific decisions. 

Question 21. Have you discussed with Wilma Liebman, the Board’s current Chairman, and/or Mark Pearce, the other Democrat nominee, what changes the political 

majority on the Board plan to make in Board law? 

Answer 21. No, at no time have I discussed with Wilma Liebman, the Board’s current Chairman, and/or Mark Pearce, the other Democrat nominee, what changes the 

political majority on the Board plan to make in Board law. 

Question 22. Have you ever discussed with anyone whether card check could be 

imposed by the Board under the NLRA? 

Answer 22. No, at no time have I discussed with any person any action I would 

or would not take as a member of the Board. 

Question 23. What is your view on whether the timeframe should be shortened 

from the date a petition is filed to the date a representation election is held? 

Answer 23. If I am confirmed as a member of the NLRB, I will not assume the 

position with any preconceived agenda as to such questions of administration. I will 

seek the benefit of the immense experience and expertise of the Board’s career staff 

in administering and enforcing the Act, in particular, in conducting elections. I will 

consult with my fellow Board members. The Board’s regional office staffs and central representation case unit have been involved in thousands of elections. If I am 

confirmed as a member of the NLRB, I would seek their counsel before reaching any 

conclusion on whether such a timeframe should be imposed. If suggestions for mandating such a timeframe are made, I will evaluate them with an open mind based 

on the terms of the statue and relevant Supreme Court precedent and with due regard for the principle of stare decisis and the importance of stability in the law and 

respect for parties’ legitimate reliance on existing law. In considering any such suggestion, I would consider, among other factors, the number and complexity of issues 

the Board must resolve prior to conducting elections, the nature of the proceedings 

required to resolve the issues, and the difficulty of preparing to conduct elections. 

Question 24. Do you think that any form of employer speech should be limited 

during an organizing campaign in any manner? 

Answer 24. As I stated at my confirmation hearing, in answer to a question from 

Senator Isakson, the current law clearly protects employers’ ability to express their 

views—not only the National Labor Relations Act, but the first amendment to the 

U.S. Constitution. It is clear that employers have legitimate interests and have an 

34 

indisputable right to express their views on the question of whether their employees 

should unionize. The Board, with the approval of the Supreme Court, has, however, 

held that the Act bars employer expression that contains a threat of reprisal or force 

or promise of benefit. The Board has also held that making speeches on company 

time to massed assemblies of employees during the last 24 hours before an election 

is objectionable conduct and grounds for overturning the results of an election. 

Question 25. Have you participated in any cases currently pending before the 

Board? 

Answer 25. Yes. 

Question 26. How many? In what capacity? Please provide a list? 

Answer 26. Dana Co., No. 7–CA–46965, as counsel to amicus curiae; Hacienda Resort Hotel & Casino, 351 NLRB 504 (2007), as counsel to amicus curiae on review 

of prior Board decision in Ninth Circuit and on prior remand to Board; Correctional 

Medical Services, 349 NLRB 1198 (2007), as counsel to petitioner in Court of Appeals; Tribune Publishing Co., 351 NLRB 196 (2007) (may remain pending after petition for review denied for purposes of compliance), as counsel to putative intervenor in Court of Appeals; Guardsmark, LLC, 344 NLRB 809 (2005) (may remain 

pending after petition for review granted by Court of Appeals), as counsel to petitioner in Court of Appeals; Randell Warehouse of Ariz., Inc., 328 NLRB 1034 (1999) 

(may remain pending after petition for review granted by Court of Appeals), as 

counsel to intervenor in Court of Appeals. 

Question 27a. Have you taken the Administration’s ‘‘Ethic’s Commitments by Executive Branch Personnel?’’ 

Answer 27a. If confirmed, I will take the President’s Ethics Pledge upon confirmation. Please see my answer below. 

Question 27b. Do you intend to? 

Answer 27b. Yes. I have entered into an ethics agreement with the NLRB that 

provides: 

‘‘I understand that as an appointee I am required to sign the Ethics Pledge 

(Executive Order No. 13490) and that I will be bound by the requirements and 

restrictions therein in addition to the commitments I have made in this and any 

other ethics agreement.’’ 

Question 28. Do you intend to seek a waiver from the Director of OMB [permitted 

by paragraph 3]? 

Answer 28. No. 

Question 29. Are you familiar with 5 CFR Section 2635.02 which provides that 

an employee is required to consider whether the employee’s impartiality would reasonably be questioned if the employee were to participate in a particular matter involving specific parties where persons with certain personal or business relationship 

with the employee are involved. If the employee determines that a reasonable person would question the employee’s impartiality, or if the agency determines that 

there is an appearance concern, then the employee should not participate in the matter unless he or she has informed the agency designee of the appearance and received 

authorization from the agency. 

Answer 29. Yes, I am familiar with 5 CFR Section 2635.502 which provides: 

‘‘Where an employee knows that a particular matter involving specific parties 

is likely to have a direct and predictable effect on the financial interest of a 

member of his household, or knows that a person with whom he has a covered 

relationship is or represents a party to such matter, and where the employee 

determines that the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter, the employee should not participate in the matter unless he has informed the agency 

designee of the appearance problem and received authorization from the agency 

designee in accordance with paragraph (d) of this section.’’ 

Question 30. Apart from the Executive Order, don’t you believe that if you participated in decisions raising issues on which the AFL–CIO or the SEIU have taken 

a public position while you were employed by them that your impartiality would 

reasonably be questioned? 

Answer 30. If at any time during my service on the Board a case comes before 

me relating in any way to SEIU or the AFL–CIO 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 

35 

a conflict of interest, I will recuse myself. Moreover, in any such case where there 

is no actual conflict but my participation might be perceived as creating an appearance of conflict, I will consult with agency ethics officials and review applicable rules 

and precedents to determine whether recusal under the particular circumstances 

presented would be appropriate. 

Question 31. Since 1990 you have been a member of the office of General Counsel 

for the SEIU in Los Angeles and Chicago and since 2004 Staff Counsel for the AFL– 

CIO in Chicago. Mr. Becker, do you understand that you are the first person in the 

history of the National Labor Relations Board to be nominated for a full term on 

the Board who, if confirmed, would go on the Board directly from a labor organization, in your case two of the Nation’s largest international unions, the AFL–CIO and 

the SEIU International? Are there any unique challenges posed by your background 

that members of the committee should take into consideration as they consider 

whether you can fulfill your obligation to carry out your duties as a member of the 

Board fairly, impartially and in a non-biased fashion? 

Answer 31. I do not believe that there are unique challenges. Many NLRB members came from private practice where they had represented labor or management 

or employees on issues that could come before the Board. One former member came 

to the Board directly from service as Director of Labor Law Policy at the U.S. Chamber of Commerce. As I testified at my confirmation hearing and repeated in answer 

to your Question 31, above, if confirmed, I will avoid any conflicts of interest and 

carry out my Board duties fairly, impartially and in strict accordance with law. 

Question 32. You testified that if confirmed to the National Labor Relations Board 

you intended to scrupulously comply with paragraph 2 of the President’s Executive 

Order, Ethics Commitments by Executive Branch Personnel. I accept that to mean 

that you do not intend to seek a waiver from the application of paragraph 2 from 

participating in any matter that comes before the Board that is directly or substantially related to the AFL–ClO or the SEIU International. Is that correct? 

Answer 32. Yes. 

Question 33. Do you agree that a charging or a charged party in a case before 

the NLRB is a ‘‘party’’ under the Ethics Pledge? 

Answer 33. Yes. 

Question 34. Do you intend to participate in cases that are directly or substantially related to the AFL–CIO or the SEIU International after your first 2 years on 

the Board are concluded? 

Answer 34. Please see my answer to Question 31 above. 

Question 35. Does your answer to Question 33 mean that, if confirmed, during 

your first 2 years on the Board you do not intend to participate in any case that 

is filed by the NLRB General Counsel based on the recent charges filed by the SEIU 

International alleging that the National Union of Healthcare Workers (formed by 

leaders whose SEIU local was put into trusteeship by the SEIU International) was 

engaged in unlawful conduct. Please answer ‘‘yes’’ or ‘‘no’’ and then explain. If your 

answer is in the negative, please explain how you can ethically participate in such 

cases. 

Answer 35. I have had no involvement and am not familiar with any charges alleging unlawful conduct by the National Union of Healthcare Workers. However, if 

I am confirmed, if the charges you describe result in the issuance of a complaint, 

if the issuance of a complaint results in the matter coming before the Board, and 

if the matter comes before a panel to which I am assigned, I will recuse myself from 

any consideration of the matter. 

Question 36. Do you intend to participate in cases involving the petitions for election that were blocked by the latter charges of the SEIU local? If your answer is 

in the affirmative, please explain how you can ethically participate in such cases. 

Answer 36. Please see my answer to Question 6 above. 

Question 37. Do you intend to participate in any such cases referred to in Questions 5 and 6 after your first 2 years on the Board are concluded? 

Answer 37. Please see my answer to Questions 6 and 31 above. 

Question 38. Does your answer to Question 33 mean that, if confirmed, during 

your first 2 years on the Board, you do not intend to participate in any case that 

is filed by the NLRB General Counsel based on charges filed by an SEIU local alleging that the NUHW, which petitioned for an election, was engaged in unlawful conVerDate Nov 24 2008 14:28 Dec 20, 2010 Jkt 035165 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 S:\DOCS\54758.TXT DENISE
36 

duct? Please answer ‘‘yes’’ or ‘‘no’’ and then explain. If your answer is in the negative, please explain how you can ethically participate in such cases. 

Answer 38. Please see my answers to Questions 6 and 31 above. 

Question 39. Do you agree that the SEIU International has a substantial interest 

in the resolution of cases filed by the NLRB General Counsel based on charges filed 

by an SEIU local alleging that the NUHW, which petitioned for an election, was 

engaged in unlawful conduct? Please answer ‘‘yes’’ or ‘‘no.’’ If your answer is in the 

negative, please explain? 

Answer 39. Please see my answer to Question 6 above. I do not believe it is appropriate to opine on hypothetical cases, on cases that have not yet been filed, or on 

cases involving facts of which I am not aware at this time. If confirmed, once the 

facts of a particular matter involving specific parties are presented to me, I intend 

to follow the commitments I described in my answer to Question 31 above. 

Question 40. Does your answer to Question 33 mean that, if confirmed, during 

your first 2 years on the Board you do not intend to participate in any case involving a petition filed by the NUHW seeking an election in units represented by an 

SEIU local? Please answer ‘‘yes’’ or ‘‘no’’ and then explain. If your answer is in the 

negative, please explain how you can ethically participate in such cases. 

Answer 40. Please see my answer to Question 6 above. I do not believe it is appropriate to opine on hypothetical cases, on cases that have not yet been filed, or on 

cases involving facts of which I am not aware at this time. If confirmed, once the 

facts of a particular matter involving specific parties are presented to me, I intend 

to follow the commitments I described in my answer to Question 31 above. 

Question 41. Do you agree that without regard to the Ethics Pledge that if you 

were to participate in any of the cases referred to in the above Questions 36, 39 

and 41, your impartiality as a result of being a former Associate General Counsel 

of the SEIU International for nearly 20 years could reasonably be questioned? 

Answer 41. Please see my answers to Questions 6, 31, 36, 39 and 41 above. I do 

not believe it is appropriate to opine on hypothetical cases, on cases that have not 

yet been filed, or on cases involving facts of which I am not aware at this time. If 

confirmed, once the facts of a particular matter involving specific parties are presented to me, I intend to follow the commitments I described in my answer to Question 31 above. 

Question 42. If your answer to the above Question 42 is in the affirmative, will 

you commit now as a member of the Bar and without regard to the Ethics Pledge 

and 5 CFR Section 2635.502 to recuse yourself from all such cases? Please answer 

‘‘yes’’ or ‘‘no.’’ If your answer is in the negative, how will it be possible to protect 

the integrity of the NLRB and the perception of that Board as an impartial adjudicator of disputes? 

Answer 42. I do not believe it is appropriate to opine on hypothetical cases, on 

cases that have not yet been filed, or on cases involving facts of which I am not 

aware at this time. If confirmed, once the facts of a particular matter involving specific parties are presented to me, I intend to follow the commitments I described in 

my answer to Question 31 above. 

Question 43. Do you believe your ethical obligations as a member of the Bar are 

limited to the Ethics Pledge and 5 CFR 2635.502? Please answer ‘‘yes’’ or ‘‘no’’ and 

then fully explain your answer. 

Answer 43. No. If at any time during my service on the Board a case comes before 

me in which recusal is not required by 5 CFR 2635.502 or by my ethics pledge, but 

where the particular circumstances are such that my participation would constitute 

a conflict of interest, I will recuse myself. Moreover, in any such case where there 

is no actual conflict but my participation might be perceived as creating an appearance of conflict, I will consult with agency ethics officials and review applicable rules 

and precedents to determine whether recusal under the particular circumstances 

presented would be appropriate. 

Question 44. As to each of the following cases did the AFL–CIO or the SEIU International file an amicus brief or, after the case was issued, take a public position 

that the case was wrongly decided and/or should be reversed? In answer to your 

question, for each case please indicate whether the AFL–CIO or the SEIU International filed an amicus brief or took a public position that the case was wrongly 

decided and/or should be reversed. Did you have any role in writing, reviewing or 

approving any comments on the following cases? 

Answer 44. Please see my answer to Question 46. 

37 

Question 45a. Dana Corp & Metaldyne, 351 NLRB 434 (2007) 

Answer 45a. The AFL–CIO filed an amicus brief in this case. SEIU did not file 

an amicus brief. Please see my answer to Question 21. 

Question 45b. Oakwood Healthcare Inc., 348 NLRB 686 (2006) 

Answer 45b. The AFL–CIO filed an amicus brief in this case. SEIU filed an amicus brief in this case. Please see my answer to Question 21. 

Question 45c. Oil Capitol Sheet Metal, 349 NLRB 1348 (2007) 

Answer 45c. To the best of my knowledge, neither the AFL–CIO nor SEIU filed 

an amicus brief in this case. Please see my answer to Question 21. 

Question 45d. Toering Electric Co., 351 NLRB 225 (2007) 

Answer 45d. To the best of my knowledge, neither the AFL–CIO nor SEIU filed 

an amicus brief in this case. Please see my answer to Question 21. 

Question 45e. Harborside Healthcare, 343 NLRB 906 (2004) 

Answer 45e. To the best of my knowledge, neither the AFL–CIO nor SEIU filed 

an amicus brief in this case. Please see my answer to Question 21. 

Question 45f. Brown University, 342 NLRB 483 (2004) 

Answer 45f. The AFL–CIO filed an amicus brief in this case. SEIU did not file 

an amicus brief in this case. Please see my answer to Question 21. 

Question 45g. BE&K Construction Co., 351 NLRB 451 (2007) 

Answer 45f. To the best of my knowledge, neither the AFL–CIO nor SEIU filed 

an amicus brief in this case. Please see my answer to Question 21. 

Question 46. Do you agree that whether or not they are a party to the particular 

case seeking the reversal, the AFL–CIO and the SEIU International believe they 

have a substantial interest in seeing the cases referred to in the above Question 45 

reversed? 

Answer 46. I do not believe it is appropriate to speculate about what the beliefs 

of these organizations will be at some time in the future concerning hypothetical 

cases, cases that have not yet been filed, and cases involving facts of which I am 

not aware at this time. If at any time during my service on the Board a case comes 

before me relating in any way to SEIU or the AFL–CIO 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. Moreover, in any such case where there 

is no actual conflict but my participation might be perceived as creating an appearance of conflict, I will consult with agency ethics officials and review applicable rules 

and precedents to determine whether recusal under the particular circumstances 

presented would be appropriate. 

Question 47. Do you agree that without regard to the Ethics Pledge that if you 

were to participate in a case seeking the reversal of one of the cases referred to in 

Question 45 in which the AFL–CIO or the SEIU International filed an amicus brief 

or, after the case issued, took a public position that the case was wrongly decided 

and/or should be reversed, that your impartiality as the result of being a former Associate General Counsel of the SEIU International and AFL–CIO could reasonably 

be questioned? 

Answer 47. I do not believe my impartiality concerning a particular case could be 

reasonably challenged solely because when I was in private practice I represented 

a client that took a position on a legal issue. Whether my impartiality could be reasonably questioned would depend on the particular facts of the situation. If at any 

time during my service on the Board a case comes before me relating in any way 

to SEIU or the AFL–CIO 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. Moreover, in any such case where there is no actual conflict 

but my participation might be perceived as creating an appearance of conflict, I will 

consult with agency ethics officials and review applicable rules and precedents to 

determine whether recusal under the particular circumstances presented would be 

appropriate. 

Question 48. If your answer to Question 47 is in the affirmative, will you commit 

now as a member of the Bar to recuse yourself from cases seeking the reversal of 

such precedent. Please answer ‘‘yes’’ or ‘‘no’’. 

38 

Answer 48. My answer to Question 47 was not in the affirmative. Please see my 

answer to Question 31. 

Question 49. If your answer to Question 47 is in the negative, please explain how 

your impartiality would not reasonably be questioned since you were an Associate 

General Counsel of both labor organizations at the time? 

Answer 49. My answer to Question 47 was not in the negative. Please see my answer to Questions 31 and 48. 

Question 50. If you are confirmed as a member of the NLRB, when your term 

ends do you have plans to return to work for the AFL–CIO and/or the SEIU International or to work for another labor organization? 

Answer 50. I have no such plans. 

Question 51. Without regard to Board certification of the results, do you favor recognition of a union based on card check over the secret ballot election and, if so, 

why? 

Answer 51. Under the NLRA as currently construed, employees can choose a representative either through a Board-supervised election or (with their employer’s consent) by otherwise demonstrating that a majority of employees wish to be represented by the representative. Both of those procedures have, under appropriate 

circumstances, been held to be consistent with the act’s protection of employees’ free 

choice of a representative. However, an employer can generally decline to recognize 

a representative chosen by means other than a Board-supervised election. In addition, only an election can result in Board certification. The questions of whether the 

Board should be authorized to certify a representative based on evidence of majority 

support other than the results of an election and whether collective bargaining representatives should only be chosen in Board-supervised elections are questions appropriately addressed in Congress. In general, I believe private, secret ballot elections have been enormously important in advancing democratic values in a variety 

of arenas in this country and around the world. How effective secret ballot elections 

are in advancing democratic values depends on the procedures used to conduct the 

election, the rules governing the election, and the legal consequences that attach to 

its outcome. Because questions concerning the relative superiority of Board-supervised elections versus nonelectoral evidence of majority support may arise before the 

Board, I do not believe it would be appropriate to address them further in this context. 

Question 52. Do you believe that a card check, with the cards solicited and collected by the union, is as reliable an indicator of employee free choice as the secret 

ballot election? 

Answer 52. I believe the answer to that question depends on the procedures used 

to conduct the secret ballot election or card check process, the rules governing each, 

and the legal consequences that attach to their outcomes. Because questions concerning whether a secret ballot election is a superior mechanism to the card check 

process may arise before the Board, for example, in the context of a decision whether to order a rerun election or issue a bargaining order based on a card showing 

of majority support, I do not believe it would be appropriate to address them further 

in this context. 

Question 53. Do you believe that an employer’s recognition of a union based on 

a card check must be voluntary? 

Answer 53. An employer is generally free to decline to recognize a representative 

chosen by means other than a Board-supervised election. The Supreme Court has 

held, however, that where an employer has engaged in unfair labor practices ‘‘likely 

to destroy the union’s majority and seriously impede the election’’ the employer may 

not insist on an election and can be ordered by the Board to bargain. NLRB v. 

Gissel Packing Co., 395 U.S. 575, 600 (1969). 

Question 54. If an employer’s recognition of a union occurs after a vigorous corporate campaign conducted by that union which negatively impacts on the employer’s business is that recognition voluntary? Should it be recognized by the Board? 

Answer 54. The term ‘‘corporate campaign’’ is not used in the act or elsewhere 

in Federal or State law as far as I am aware. The term has no precise meaning. 

If the recognition is the result of a violation of the act, it is subject to challenge 

before the Board. 

39 

RESPONSE TO QUESTIONS OF SENATOR HATCH BY HAROLD CRAIG BECKER

Question 1. The January 20, 2010 issue of The Nation magazine, in an article entitled ‘‘Obama’s pro-union nomination to labor relations board stalled,’’ the authors 

commented as follows regarding your ability to enact far-reaching labor law reforms 

at the NLRB: 

‘‘The NLRB even could make it easier for workers to unionize based on a card 

check showing of majority support—just as the EFCA would. It could force employers to recognize a union as the representative of its employees so long as 

a neutral third party verified that more than 50 percent of those employees had 

signed a written statement expressing a desire to be represented by that union. 

That’s a fairer way for workers to become unionized than the current cumbersome and flawed NLRB election process, which is often abused by employers 

who threaten retaliation against their workers.’’ 

Subsequently, the editors of The Nation clarified that they did not mean to suggest that you had made such a suggestion in your writings with reference to cardcheck recognition. Do you agree with that original statement? 

Answer 1. I do not believe that the Board has authority to implement the card 

check provisions of EFCA. As I stated at my confirmation hearing, in response to 

a question from Senator Harkin, the reason the Employee Free Choice Act has been 

introduced in Congress and the reason that question is before the Congress and not 

the Board is that the current act clearly precludes certification in the absence of 

a secret ballot election. Section 9 of the Act, in two distinct ways, makes clear that 

Congress has intended that a secret ballot election be a precondition for certification 

of the union as a representative of a unit of employees. First, the act provides explicitly that the Board shall certify the results of a secret ballot election. Second, 

the act provides that employers—should they be confronted with a demand for recognition based on evidence of majority support, for example, by signed authorization 

cards—may petition for a secret ballot election. So the law is clear that the decision 

as to whether an alternative route to certification should be created rests with Congress, not with the Board. 

Question 2. Former NLRB Chairman Bill Gould apparently agrees with The Nation magazine article. In the July 2009 issue of Workforce Magazine, in an article 

entitled ‘‘NLRB decisions could make card check a reality’’ the author states: 

‘‘If the card-check provision of the Employee Free Choice Act fails to survive 

legislative negotiations, it may not necessarily die. If the right case comes along, 

the National Labor Relations Board could rule that a company must recognize 

a union formed through the card-check process.’’ 

When asked, former NLRB Chairman Gould responded: ‘‘in my judgment, yes, the 

Board could issue such a ruling.’’ 

Do you agree or disagree with Chairman Gould? That is, do you agree that as a 

member of the NLRB, you could vote for a card check system which would force employers to recognize and bargain with a union, without a secret ballot election, even 

without the employer having committed any unfair labor practices or without having engaged in any objectionable conduct, just as EFCA would? 

Answer 2. I do not believe that the NLRB can order an employer that had not 

committed any unfair labor practice or engaged in any objectionable conduct to recognize and bargain with a union without a secret ballot election. Please see my answer to Question 1. 

Question 3. Would you assure us now that should you be confirmed, you will not 

vote, either through rulemaking, decisionmaking, or administrative interpretation, 

to force employers to recognize and bargain with a union based solely on signed 

cards? 

Answer 3. In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Supreme 

Court held that under appropriate circumstances an order that an employer bargain 

with a union is a lawful and appropriate remedy for employer unfair labor practices 

that prevent the conduct of a fair election. Since that decision, the Board has issued 

such orders and they have routinely been upheld in the Courts of Appeals. If I am 

confirmed as a member of the Board and if an argument for categorically refusing 

to issue Gissel bargaining orders as you suggest is made to the Board, I will evaluate the argument with an open mind based on the terms of the statute and relevant 

Supreme Court precedent and with due regard for the principle of stare decisis and 

the importance of stability in the law and respect for parties’ legitimate reliance on 

existing law. 

40 

Question 4. You do agree that under the Gissel decision, the Board has the authority to issue what are known as Gissel Bargaining Orders to force an employer 

to recognize a union without an election, or even without a showing of majority support to remedy an employer’s unfair labor practices? 

Answer 4. The Supreme Court stated in Gissel that the Board has authority to 

issue bargaining orders directing an employer to bargain with a union that has not 

won an election in two situations. Where the employer has committed ‘‘outrageous’’ 

and ‘‘pervasive’’ unfair labor practices, the Board may issue a bargaining order even 

if the union had never demonstrated majority support. Where the unfair labor practices are less severe but nonetheless tend to undermine majority support and impede the election process, the Board may also issue a bargaining order if the union 

had at one time achieved majority support and the possibility of erasing the effects 

of the unlawful conduct and ensuring a fair election through traditional remedies 

is slight. 

Question 5. Are you in favor of using this existing power more frequently? In 

other words, are there cases where you believe a Gissel Bargaining Order was warranted, but not awarded, such as the Board’s decisions in Abramson (2005), Hialeah 

Hospital (2004), Register Guard (2005), Internet Stevensville (2007), and First Legal 

Support Services (2004) all of which contained dissents from member—Liebman or 

member Walsh? 

Answer 5. The appropriateness of the issuance of a Gissel order depends on the 

facts of a particular case. I would not form any conclusion about the appropriateness 

of such an order without fully reviewing the record in a particular case and having 

the benefit of adversarial presentation of the arguments by all parties. 

Question 6. Are you in favor of increasing the Board’s use of extraordinary remedies, such as Gissel Bargaining Orders, even where the union has never demonstrated majority support among the employees (so-called ‘‘non-majority bargaining 

orders’’) even based on signed union authorization cards? 

Answer 6. If I am confirmed as a member of the NLRB and if an argument for 

a particular remedy is presented to me as a member of the NLRB in a case where 

the Board has found that a labor organization or an employer has engaged in an 

unfair labor practice, I will consider the argument with an open mind based on the 

terms of the act, relevant Supreme Court precedent, and with due regard for the 

principle of stare decisis and the importance of stability in the law and respect for 

parties’ legitimate reliance on existing law. Because questions concerning appropriate remedies could arise before the Board, I do not believe it would be appropriate to address them further in this context. 

Question 7. Do you agree with the statement in The Nation Magazine article that 

card check is ‘‘a fairer way for workers to become unionized’’—that is fairer than 

a secret ballot election? Is a public card check really fairer than an NLRB-Supervised private ballot, or secret ballot, election? 

Answer 7. Under Federal labor law as currently construed, employees can choose 

a representative either through a Board-supervised election or (if their employer 

consents) by otherwise demonstrating that a majority of employees wish to be represented by the representative. I believe the answer to your question depends on 

the procedures used to conduct the secret ballot election or card check process, the 

rules governing each, and the legal consequences that attach to their outcomes. Because questions concerning whether a secret ballot election is a superior mechanism 

to a card check process may arise before the Board, for example, in the context of 

a decision whether to order a rerun election or issue a bargaining order based on 

a card showing of majority support, I do not believe it would be appropriate to address them further in this context. 

Question 8. The article refers to the current secret ballot election process as being 

‘‘cumbersome and flawed’’ and ‘‘often abused by employers who threaten retaliation 

against their workers.’’ Of course, democracy sometimes is cumbersome and flawed, 

as we know from political elections. Do you believe that the NLRB-Supervised secret 

ballot election process—what has been referred to in the past by both labor and 

management as the NLRB’s crown jewel—is so cumbersome and flawed that it 

should be rejected in favor of a union card check certification process? 

Answer 8. As I testified at my confirmation hearing on February 2, 2010, in response to a question from Senator Harkin, the question of whether the secret ballot 

election process should be rejected in favor of or supplemented with a card check 

certification process rests with Congress. 

41 

Question 9. Is it not just as true that unions threaten workers who do not agree 

to vote for the union? And would it not be likely—and perhaps even more likely— 

for unions to abuse the card check process by threatening or coercing workers to 

sign cards? 

Answer 9. Current law bars coercion by unions and employers in relation to employees’ choice of whether to be represented, whether that choice is being made in 

a Board-supervised election or by signing authorization cards. Such threats by employers or unions are grounds for objections that may result in overturning the results of an election. Such threats by employers or unions are also grounds for unfair 

labor practice charges that may result in an order that an employer cease recognizing a union. Different procedures for gauging majority support present different 

opportunities for such unlawful coercion by both unions and employers. Whether 

employees would be subject to heightened levels of intimidation, threats or coercion 

if Congress authorized the Board to certify a representative based on authorization 

cards is an empirical question, the answer to which would depend on the procedures 

used in the processes and the rules governing the processes and is a question appropriately addressed by Congress. 

Question 10a. In that same Nation Magazine article, the authors state: 

‘‘NLRB nominee Craig Becker has written that in National Labor Relations 

Board proceedings related to unionizing, where a union or workers file for a 

Board election in order to form or dissolve a union, there is nothing in the National Labor Relations Act which compels the NLRB’s current policy, which is 

to permit the employer to be an active participant either favoring, opposing or 

even obstructing such an election.’’ 

I know that the editors have clarified that you did not write those views in exactly 

those terms. But do you agree with the statement that there’s nothing to compel 

the Board’s current policy? 

If yes, then you agree that you would have the power as a member of the NLRB 

to vote to exclude employers from being an active participant in the representation 

election process? 

Answer 10a. As I stated at my confirmation hearing, in answer to a question from 

Senator lsakson, the current law clearly protects employers’ ability to express their 

views on the question of whether their employees should vote to be represented by 

a labor organization—not only the National Labor Relations Act, but the first 

amendment to the U.S. Constitution. It is clear that employers have legitimate interests and have an indisputable right to express their views on that question. 

Question 10b. If no, then did you not advocate in the 1993 Minnesota Law Review 

that: ‘‘Employers should have no legally sanctioned role in union elections’’ and also 

that ‘‘Employers should be stripped of any legally cognizable interest in their employees’ election of representatives?’’ 

Answer 10b. In my 1993 Minnesota Law Review article, I suggested that employees should be afforded party status in proceedings concerning whether or not they 

should be represented and that employers could protect their legally protected interests in a subsequent unfair labor practice proceeding. I did not suggest that employers should be barred from freely communicating their views on union representation. The suggestions in my 1993 Minnesota Law Review article were made as a 

scholar seeking to further meaningful and wide-ranging analysis of the law. The 

suggestions I made in a scholarly article published in 1993 will not control my judgment on these questions if I am confirmed as a member of the NLRB. I have no 

personal views that would prevent me from approaching this issue as a Board member with an open mind and without prejudgment, consistent with my responsibilities 

to administer the law fairly and impartially. 

Question 11. In your 1993 Minnesota law review article you advocated in favor 

of ‘‘Altering the nature of the choice presented to workers in union elections. And 

that such a reform would mandate employee representation, and the question posed 

on the ballot would simply be which representative.’’ Your response to my previous 

written question on this point was, I have to say, rather weak. You responded that 

in the article you ‘‘did not suggest that your argument should be accepted,’’ but you 

do not deny that it was your view. Do you really believe that employees’ options 

should be limited to ‘‘which representative’’ and that employees should, in that way, 

be mandated to join a union? 

Answer 11. That was not my view. In my 1993 Minnesota Law Review article, 

I described this as an argument that could be made. I did not suggest that argument should be accepted. In fact, I suggested the opposite. I also stated in my 1993 

42 

article that such a change would ‘‘require fundamental statutory revisions.’’ 77 

Minn.L.Rev. at 584. Only Congress could mandate employee representation. 

Question 12. At another point in your written advocacy you state that employers 

should be bound by their own restrictions on solicitation, distribution, and access 

rules that they apply to outsiders and other strangers to the workplace. In response 

to my previous written question on this point, you confirmed that is your view, but 

that you wrote that as a ‘‘scholar’’ and that you have no personal views that would 

prevent you from being open-minded. 

Does that not mean that, in your view, in spite of the free speech provisions of 

section 8(c) of the Act, employers should be prohibited from solicitation, distribution, 

and access to their own employees on the employer’s own property, to communicate 

about union organizing, just as they prohibit outsiders and strangers from doing? 

Answer 12. In my 1993 Minnesota Law Review article, I did not suggest that employers should be prevented from speaking to their employees at work without offering a labor organization the same opportunity. Moreover, the suggestions in my 

1993 Minnesota Law Review article were made as a scholar seeking to further 

meaningful and wide-ranging analysis of the law. The suggestions I made in a scholarly article published in 1993 will not control my judgment on these questions if 

I am confirmed as a member of the NLRB. I have no personal views that would 

prevent me from approaching this issue as a Board member with an open mind and 

without prejudgment, consistent with my responsibilities to administer the law fairly and impartially. If I am confirmed as a member of the NLRB and an argument 

that the Board should somehow alter its solicitation, distribution or access rules in 

some manner is made to the Board, I will consider it with an open mind based on 

the terms of the act, the first amendment, and relevant Supreme Court precedents. 

Because questions concerning these issues could arise before the Board, I do not believe it would be appropriate to address them further in this context. 

Question 13. You also wrote in the Minnesota law review that defining employer 

requirements that employees listen to speeches opposing or supporting unionization 

as being ‘‘objectionable conduct’’ sufficient to overturn the results of a representation 

election, would be consistent with section 8(c) of the act—the ‘‘free speech’’ provision. 

Apparently, in your view, it would be objectionable even absent ‘‘threats, coercion, 

or promises of benefit.’’ Simply requiring employees to listen—whether or not they 

agree with what is being—said would be objectionable conduct. Is it your position, 

therefore, that—employers should be prevented from mandatory workplace meetings 

with employees at work? What about such meetings elsewhere? 

Answer 13. In my 1993 Minnesota Law Review article, I described the adoption 

of section 8(c) and stated that it prevents the Board from considering employer 

speech ‘‘evidence of an unfair labor practice’’ absent a threat or promise of benefit. 

I did not suggest that it would be consistent with section 8(c) to prevent an employer from expressing its views. I suggested only that defining employer requirements, undergirded by an express or implied threat of discipline, that employees listen to speech opposing or supporting unionization as objectionable conduct would be 

consistent with section 8(c). The suggestion in my 1993 Minnesota Law Review article was made as a scholar seeking to further meaningful and wide-ranging analysis 

of the law. The suggestions I made in a scholarly article published in 1993 will not 

control my judgment on these questions if I am confirmed as a member of the 

NLRB. I have no personal views that would prevent me from approaching this issue 

as a Board member with an open mind and without prejudgment, consistent with 

my responsibilities to administer the law fairly and impartially. If I am confirmed 

as a member of the NLRB and if any such argument is made to the Board, I will 

consider it with an open mind based on the terms of the act, the first amendment, 

and relevant Supreme Court precedents. Because questions concerning the scope of 

protection afforded by section 8(c) could arise before the Board, I do not believe it 

would be appropriate to address them further in this context. 

Question 14. You also have advocated in an article entitled ‘‘Better Than a Strike: 

Protecting New Forms of Collective Work Stoppages Under the National Labor Relations Act’’ that repeated, short-term grievance strikes should replace the prohibited 

‘‘intermittent’’ or ‘‘partial’’ strikes. In your opinion, is that what we need in this 

country—more strikes and short-term disruptions, especially in this economy? Isn’t 

one of the purposes of the National Labor Relations Act to prevent obstructions to 

interstate commerce? 

Answer 14. It is the declared policy of Federal labor law to ‘‘promote the full flow 

of commerce’’ and to ‘‘eliminate the causes of certain substantial obstructions to the 

free flow of commerce.’’ My 1994 Chicago Law Review article suggested that short 

strikes over specific grievances are less disruptive of production than open-ended 

43 

strikes and would lead to greater labor-management cooperation than open-ended 

strikes. The article did not suggest that any existing precedent should be overruled. 

The article suggested that existing law should be applied to such strikes. The suggestions in my 1994 University of Chicago Law Review article were made as a scholar seeking to further meaningful and wide-ranging analysis of the law. The article 

explained that the suggestions were consistent with the act, then existing Board and 

court precedent, and then existing Board General Counsel Memoranda. I am not 

currently aware of any subsequent Board or court holdings rejecting the narrow suggestions advanced in my article. The statements in the article will not control my 

judgment on these questions if I am confirmed as a member of the NLRB. I have 

no personal views that would prevent me from approaching this issue as a Board 

member with an open mind and without prejudgment, consistent with my responsibilities to administer the law fairly and impartially. If I am confirmed as a member of the NLRB and if any argument concerning strikes is made to the Board, I 

will consider it with an open mind based on the terms of the act and relevant Supreme Court precedents. Because questions concerning these issues could arise before the Board, I do not believe it would be appropriate to address them further in 

this context. 

Question 15. What are your views on expanded rulemaking? What types of representation issues should be considered? And I ask you to respond not as a candidate for the NLRB as to what you may or may not do if confirmed, but as a longtime union lawyer. 

Answer 15. The act vests in the Board authority to adopt rules and regulations 

‘‘as may be necessary to carry out the provisions of ’’ the act. The Board has promulgated rules governing procedures in unfair labor practice, representation, and other 

types of cases. I would cite the Board’s rulemaking procedures in 1989 establishing 

presumptively appropriate units in acute care hospitals, see 29 CFR 101.30, approved by the Supreme Court in American Hospital Association v. NLRB, 499 U.S. 

606 (1991), as an example of the types of circumstances where rulemaking is appropriate. 

Would this not be a way to inject your views on representation elections, as expressed in your articles, even without having to wait for a case to decide, and possibly be reversed in a Federal court of appeals? 

Answer 15. No. 

Question 16. Have you had conversations with Chairman Liebman concerning 

NLRB rulemaking? 

Answer 16. No. 

Question 17. Have you had conversations with any of your colleagues at the SEIU 

or the AFL–CIO, or anyone else, about NLRB rulemaking? What rules have they 

advocated with regard to the representation process? 

Answer 17. Over the course of my 28 years in the practice of labor law, I may 

have had conversations with colleagues and other labor lawyers, professors, and students about rulemaking. I do not recall discussing any specific proposals. At no time 

have I discussed with any person any action I would or would not take as a member 

of the Board regarding rulemaking or any other matter. 

Question 18. You are a very strong and effective advocate for the interests of the 

SEIU and the AFL–CIO, and have been throughout your legal career. When you 

drafted president Obama’s executive order on employees rights under labor laws 

while still employed by the SEIU and AFL–CIO [on paid vacation] were you not, 

in effect, acting as an advocate for their interests? And, isn’t that the type of conflict 

that president Obama sought to avoid? 

Answer 18. I have not represented the SEIU or the AFL–CIO throughout my legal 

career. I have represented many other clients and I have also taught at three different law schools. I served as a volunteer member of the Presidential Transition 

Team while using vacation leave from my employment. I was asked to provide advice and information concerning possible executive orders consistent with policies 

that the President had publicly announced during the campaign. While serving on 

the Presidential Transition Team, I spoke and acted solely for myself. I did not have 

any policymaking role. I abided by the Transition Team’s ethics rules and there was 

no conflict of interest. 

Question 19. The recently proposed notice from the Department of Labor required 

by the Executive order to be posted in the worksites of all Federal contractors and 

subcontractors was inaccurate, and in most cases simply incomplete or incorrect interpretations of employees’ rights to organize, bargain collectively, and engage in 

44 

other forms of concerted activity under the National Labor Relations Act. In fact, 

if workers followed the advice on the proposed notice, they may find themselves subject to lawful discipline under current board law. It has been widely discussed that 

the NLRB also may be considering requiring a notice to be posted in all workplaces 

covered by the National Labor Relations Act—not just the workplaces of Federal 

contractors—concerning the rights of employees under the act. I would have to believe that the NLRB would do a better job of it than the Department of Labor, so 

what happens when the two posters conflict? 

Answer 19. The NLRB has primary jurisdiction to enforce and administer the National Labor Relations Act. While I do not know what incomplete or incorrect interpretations the question refers to, no statement in the Department of Labor’s notice 

would be binding on the NLRB. 

Question 20. Do you think that advice in the form of written materials drafted 

by union and management lawyers and provided by union and management lawyers 

to their clients regarding employees’ decisions to exercise or not exercise the right 

to organize and bargain collectively, should be subject to broader financial reporting 

requirements under the Labor-Management Reporting and Disclosure Act 

(LMRDA)? 

Answer 20. The National Labor Relations Board does not enforce or administer 

the Labor-Management Reporting and Disclosure Act. This question is appropriately 

addressed by Congress and the Department of Labor. 

Question 21. Don’t unions, union lawyers, and union consultants try to persuade 

employees (which is their right), just as it is the employer’s free speech right under 

the caveats of section 8(c) of the LMRDA? Shouldn’t both unions and union lawyers 

therefore be subject to the same rules as employers and management lawyers? 

Answer 21. The National Labor Relations Board does not enforce or administer 

the Labor-Management Reporting and Disclosure Act. The provision of the LMRDA 

to which you refer, 29 U.S.C. 433(b), currently refers only to persons who ‘‘pursuant 

to any agreement or arrangement with an employer’’ undertake specified activities. 

This question is, therefore, appropriately addressed by Congress. 

Question 22. If confirmed, how long do you intend to recuse yourself from matters 

involving your current employers? 

Answer 22. Pursuant to 5 CFR 2635.502, for a period of 1 year after I last provided services to a former employer, I will not participate in any particular matter 

involving specific parties in which the former employer is or represents a party, unless I am first authorized to participate, pursuant to 5 CFR 2635.502(d). In addition, 

I understand that as an appointee I am required to sign the Ethics Pledge under 

Executive Order No. 13490 and that I will be bound by the requirements and restrictions therein in addition to the requirements of 5 CFR 2635.502. Accordingly, 

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 a former employer as those terms are defined in Executive Order No. 13490, 

unless I am first authorized to participate, pursuant to Executive Order No. 13490 

Sec. 3. I have entered into an ethics agreement with the National Labor Relations 

Board to fully abide by both of these sets of restrictions. Moreover, if at any time 

during my service on the Board a case comes before me relating to a former employer 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. Finally, in any such case where there is no actual conflict but my participation might 

be perceived as creating an appearance of conflict, I will consult with agency ethics 

officials and review applicable rules and precedents to determine whether recusal 

under the particular circumstances presented would be appropriate. 

Question 23. Are you covered by President Obama’s Executive Order 12490? 

Answer 23. If I am confirmed, I will be covered by the Executive Order 13490, 

Ethics Commitments by Executive Branch Personnel (January 21, 2009). Please see 

my answer to Question 22. 

Question 24. If some exception applies, do you believe it is appropriate that different standards should apply to NLRB members as apply to Executive Branch 

nominees? 

Answer 24. The Executive Order does not expressly create different standards for 

NLRB members than apply to other executive branch nominees. Any further views 

I might form on this question would depend on the nature of the executive branch 

45 

official’s job duties and decisionmaking authority and his or her relation to the particular circumstances presented. 

Question 25. Will you recuse yourself only from those cases where the SEIU or 

the AFL–CIO are a party, or also those cases in which they have an interest (such 

as an amici)? What about cases that the SEIU or AFL–CIO has taken a formal position in, though may not have participated formally in the case? 

Answer 25. Please see my answer to Question 22. 

Question 26. How will you draw this line if it is a local SEIU chapter, rather than 

the international, that is the charged or charging party? Will you recuse yourself 

from all such cases or draw the line in some other way? 

Answer 26. In the course of my work for SEIU, I have represented a small number of local unions affiliated with SEIU. Pursuant to 5 CFR 2635.502, for a period 

of 1 year after I last provided services to a former client, including any such locals, 

I will not participate in any particular matter involving specific parties in which a 

former client is or represents a party, unless I am first authorized to participate, 

pursuant to 5 CFR 2635.502(d). In addition, I understand that as an appointee I 

am required to sign the Ethics Pledge under Executive Order No. 13490 and that 

I will be bound by the requirements and restrictions therein in addition to the requirements of 5 CFR 2635.502. Accordingly, 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 a former client as those terms 

are defined in Executive Order No. 13490, including any such locals, unless I am 

first authorized to participate, pursuant to Executive Order No. 13490 Sec. 3. I have 

entered into an ethics agreement with the National Labor Relations Board to fully 

abide by both of these sets of restrictions. Moreover, if 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. Finally, in any 

such case where there is no actual conflict but my participation might be perceived 

as creating an appearance of conflict, I will consult with agency ethics officials and 

review applicable rules and precedents to determine whether recusal under the particular circumstances presented would be appropriate. 

Question 27. The SEIU, the AFL–CIO or their locals are often parties in cases 

before the NLRB, correct? 

Answer 27. The SEIU and the AFL–CIO are rarely parties to cases before the 

NLRB. Only four local labor organizations are directly affiliated with the AFL–CIO 

and they are rarely parties to cases before the NLRB. Local labor organizations affiliated with SEIU are, on occasion, parties to cases before the NLRB. 

Question 28. In how many cases are the SEIU or AFL–CIO currently a party? 

Answer 28. I am not aware of any cases currently pending before the Board in 

which either the SEIU or the AFL–CIO is a party. 

Question 29a. Isn’t the SEIU involved and likely to become involved in quite a 

few cases before the Board involving its dispute with the National Union of 

Healthcare Workers? 

Answer 29a. I have had no involvement in the dispute between SEIU and the National Union of Healthcare Workers and I am not in a position to know or predict 

what cases, if any, related to that dispute may come before the Board in the future. 

Question 29b. Have you provided legal advice to the SEIU on that dispute in any 

way? 

Answer 29b. No. 

Question 30. Have you participated in any cases currently pending before the 

Board? If so, how many and in what capacity? Can you provide a list? 

Answer 30. Yes, as follows: Dana Co., No. 7–CA–46965, as counsel to amicus curiae; Hacienda Resort Hotel & Casino, No. 28–CA–13274, as counsel to amicus curiae; Correctional Medical, 349 NLRB 1198 (2007), as counsel to petitioner in Court 

of Appeals; Tribune Publishing, 351 NLRB 196 (2007) (may remain pending after 

petition for review denied for purposes of compliance), as counsel to putative intervenor in Court of Appeals; Guardsmark, LLC, 344 NLRB 809 (may remain pending 

after petition for review granted by Court of Appeals), as counsel to petitioner in 

Court of Appeals; Randell Warehouse of Ariz., Inc., 328 NLRB 1034 (many remain 

pending after petition for review granted by Court of Appeals), as counsel to intervenor in Court of Appeals. 

46 

Question 31. The SEIU and the AFL–CIO have publically advocated the reversal 

of certain Board precedent, correct? Which precedents? 

Answer 31. I do not know whether the SEIU or the AFL–CIO have publicly advocated reversal of specific Board precedents outside the context of advocacy in a specific, pending case. It is likely, however, that both organizations have publically 

criticized Board decisions over the course of the past 75 years. 

Question 32. Do you intend to recuse yourself from that case and other cases in 

which the SEIU or AFL–CIO have taken a public position? 

Answer 32. I do not believe my impartiality concerning a particular case could 

reasonably be questioned solely because when I was in private practice I represented a client that took a position on a legal issue. However, please see my answer to Question 22. Beyond that, I do not believe it is appropriate to opine on hypothetical cases, on cases that have not yet been filed, or on cases involving facts of 

which I am not aware at this time. 

Question 33a. Have you taken the Administration’s ‘‘Ethic’s Commitments by Executive Branch Personnel?’’ 

Answer 33. If confirmed, I will take the President’s Ethics Pledge upon confirmation. Please see my answer below. 

Question 33b. If not, do you intend to? 

Answer 33b. Yes. I have entered into an ethics agreement with the NLRB that 

provides, 

‘‘I understand that as an appointee I am required to sign the Ethics Pledge 

(Executive Order No. 13490) and that I will be bound by the requirements and 

restrictions therein in addition to the commitments I have made in this and any 

other ethics agreement.’’ 

Question 34. That pledge at paragraph 2 requires that an appointee recuse himself or herself for 2 years from any particular matter involving specific parties in 

which a former employer or client is or represents a party, if the appointee served 

that employer or client during the 2 years prior to the appointment. Specifically it 

reads: 

‘‘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.’’ 

Do you intend to comply with paragraph 2? 

Answer 34. I intend to comply with the entire pledge. 

Question 35. Does that mean that you will recuse yourself not only from all cases 

that you have participated in any way while working for the SEIU and AFL–CIO 

but also from all cases raising issues that the SEIU or AFL–CIO have taken a public position? 

Answer 35. Please see my answers to Questions 22 and 32. 

Question 36. Do you intend to seek a waiver from the Director of OMB [permitted 

in Paragraph 3]? 

Answer 36. No. 

Question 37. Are you familiar with 5 CFR Section 2635.502? This provides that 

an employee is required to consider whether the employee’s impartiality would reasonably be questioned if the employee were to participate in a particular matter involving specific parties where persons with certain personal or business relationship 

with the employee are involved. If the employee determines that a reasonable person would question the employee’s impartiality, or if the agency determines that 

there is an appearance concern, then the employee should not participate in the matter unless he or she has informed the agency designee of the appearance and received 

authorization from the agency. 

Answer 37. Yes, I am familiar with 5 CFR Section 2635.502 which provides: 

‘‘Where an employee knows that a particular mailer involving specific parties 

is likely to have a direct and predictable effect on the financial interest of a 

member of his household, or knows that a person with whom he has a covered 

relationship is or represents a party to such matter, and where the employee 

determines that the circumstances would cause a reasonable person with knowledge of the relevant facts to question his impartiality in the matter, the employee should not participate in the matter unless he has informed the agency 

47 

designee of the appearance problem and received authorization from the agency 

designee in accordance with paragraph (d) of this section.’’ 

Question 38. Apart from the Executive order, don’t you believe that if you participated in decisions raising issues on which the AFL–CIO or the SEIU have taken 

a public position while you were employed by them that your impartiality would 

reasonably be questioned? 

Answer 38. Please see my answers to Questions 22 and 32. 

RESPONSE TO QUESTIONS OF SENATOR COBURN, M.D. BY HAROLD CRAIG BECKER

Question 1. In November 2009, the National Mediation Board issued a proposed 

rule in which it relied on the ‘‘broad discretion’’ that the majority opinion believed 

was provided to it under the Railway Labor Act. Outrageously, this proposed rule 

threatens to overturn 75 years of standing labor policy (Federal Register/Vol. 74, No. 

211/Tuesday, November 3, 2009/Docket No. C–6964). Under the proposed rule, a 

union could be certified through a simple majority of the employees who vote. 

Do you think the National Mediation Board has the authority under current law 

to reverse the current, long-standing rule on its Representation Election Procedure? 

Answer 1. The National Mediation Board administers the Railway Labor Act. The 

National Labor Relations Board (NLRB) administers the National Labor Relations 

Act (NLRA). I have never appeared before the National Mediation Board and have 

not practiced under the Railway Labor Act. I cannot at this time offer an informed 

opinion about this question. 

Question 2. Do you think the National Mediation Board’s proposed rule is in keeping with precedent? 

Answer 2. As I understand the National Mediation Board’s proposal based on 

reading the notice of proposed rulemaking, the proposal is to revise an existing rule. 

Question 3. Do you think the majority of the National Mediation Board, in proposing this rule, fulfilled its duty under the Administrative Procedures Act to explain adequately its departure from agency precedent? 

Answer 3. Please see my answer to Question 1. 

Question 4. Do you think the NLRB has broad discretion under the law to make 

changes to election procedures through administrative means? 

Answer 4. Section 9 of the Act sets forth certain standards for the conduct of elections that the Board must honor. For example, section 9 specifies preconditions for 

the conduct of an election and bars an election in a unit in which an election has 

been conducted in the prior 12 months. The Board cannot depart from the standards 

established in section 9. Consistent with those statutory standards, the Supreme 

Court has held that the Board has broad discretion concerning the conduct and regulation of elections. 

Question 5. In questions for the record submitted to you on July 30, 2009, Senator 

Michael Enzi, Ranking Member of the Senate Committee on Health, Education, 

Labor, and Pensions, asked you the following question: ‘‘In your opinion, what 

changes could be made under current law to improve the union certification process?’’ You replied that, 

‘‘The Act vests broad discretion in the Board to conduct and regulate representation elections and certify the results. Subject to the constraints of the principle 

of stare decisis discussed in my answer to Question 4 and the requirements of 

the Administrative Procedures Act, where applicable, the Board could make 

changes in election procedures and rules fit determined after appropriate deliberation that they were consistent with Congress’ intent and would improve the 

process’’ (emphasis added). 

Please explain more fully your comment that the act vests broad discretion in the 

Board to conduct and regulate representation elections and certify results. 

Answer 5. I was referring to decisions of the Supreme Court which have so held. 

See, for example, NLRB v. Waterman S.S. Co., 309 U.S. 206, 226 (1940) (‘‘The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board 

alone.’’); NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946) (‘‘Congress has entrusted 

the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by 

employees.’’); and NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767 (1969) (‘‘Congress 

48 

granted the Board a wide discretion to ensure the fair and free choice of bargaining 

representatives.’’) 

Question 6. What types of changes in election procedures and rules could be made 

under the current broad discretion available under law that you mention? What 

changes could be made under current law to improve the union certification process? 

What changes could be made under current law to improve the decertification process? 

Answer 6. In the past, the Board has changed the election procedures and rules 

in a number of respects. For example, in Hollywood Ceramics Co., 140 N.L.R.B. 221 

(1962), the Board held that misrepresentations by a union or employer during an 

election campaign were grounds for overturning the election results. Later, in Midland Nat’l Life Ins. Co., 263 N.L.R.B. 127 (1982), the Board overruled its prior decision and held that it would no longer regulate the content of campaign propaganda 

in that manner. Examples of more recent cases in which the Board has changed its 

election-related rules include Kalin Construction Co., 321 N.L.R.B. 649 (1996), holding that an employer’s changes to its paycheck process during the period beginning 

24 hours before the opening of the polls and ending with the closing of the polls 

is objectionable; and Fessler & Bowman, Inc., 341 N.L.R.B. 932 (2004), holding that 

when either union or employer agents collect or otherwise handle voters’ mail ballots it is grounds for objection. All of these changes, as well as the prior rules they 

overturned, applied to decertification elections as well as certification elections. 

Question 7. What role does precedent play limiting interpretation of the law? Are 

the Board’s prior decisions controlling for future cases? What standard would you 

apply in determining whether to overrule a prior Board decision? 

Answer 7. I think the NLRB, like other adjudicatory agencies, should respect its 

own precedent and the rule of stare decisis. I think the Board should respect parties’ 

legitimate reliance on past precedent to guide their actions. I think that the Board 

should not depart from its own precedent without citing that precedent and openly 

acknowledging that it is overruling past precedent. I think that when the Board decides to overrule prior precedent it should do so expressly and only after fully explaining the basis of its decision. 

Question 8. During the February 2, 2010 hearing before the HELP Committee, 

comments were made that those with concerns about your nomination are opposing 

you solely on the basis of your having represented labor interests. Your past 

writings, however, provide ground for concern. These concerns are heightened by recent actions of the National Mediation Board in which precedent was seemingly 

dumped in favor of the personal agenda of recent Board appointees. In testimony 

before the HELP Committee on February 2, 2010, you responded to questions on 

your controversial remarks in the Minnesota Law Review, stating at the hearing 

that: ‘‘If confirmed, my decisions, unlike the views of a scholar, will have practical, 

concrete and important consequences. I will have a duty to implement the intent 

of Congress.’’ 

Please explain this comment more fully. If confirmed, how would your analysis 

of labor law and precedent differ as a practitioner studying the body of law, as opposed to a scholar studying that same body of law? As a practitioner, would you 

reach the conclusion reached in your 1993 Minnesota Law Review article that ‘‘employers should be stripped of any legally cognizable interest in their employees’ election of representatives?’’ What restraints would factor into your analysis as a practitioner that do not factor into your analysis as a scholar? 

Answer 8. A scholar does not take an oath and has no duty to uphold and fairly 

enforce the law. Scholars can and often do advocate for changes in existing law. 

Scholars do not have the benefit of or a duty to consider a full and fair presentation 

of arguments by both sides as takes place in adjudication. Scholars do not have the 

benefit of collaborative deliberation of the type I will engage in with my fellow 

Board members should I be confirmed. Only after full and fair procedures, consideration of all arguments appropriately expressed to the Board, and on the basis of specific facts would I reach any conclusions concerning questions that might come before the Board. 

Question 9. As a member of the NLRB, would you consult and factor into your 

decisionmaking any scholarly or academic work related to the topic you are considering? 

Answer 9. If I am confirmed as a member of the NLRB, I will be bound by the 

law as enacted by Congress. I will also fully respect and apply any applicable precedents of the Supreme Court. I will also respect the prior precedents of the Board 

itself, consistent with the principle of stare decisis. I would review scholarly and acaVerDate Nov 24 2008 14:28 Dec 20, 2010 Jkt 035165 PO 00000 Frm 00052 Fmt 6633 Sfmt 6621 S:\DOCS\54758.TXT DENISE
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demic work cited by parties to Board proceedings or otherwise brought to my attention. They would, of course, be given no controlling weight of any sort. 

Question 10. How do you plan to work with all members of the Board to ensure 

that decisions reached are in full keeping with the law and precedent? 

Answer 10. I hope to engage in a collaborative decisionmaking process with my 

fellow Board members, should I be confirmed. Just as the adversarial process helps 

to insure that all arguments about what the law requires or what prior precedent 

provides are fully aired and considered, I believe that a collaborative process in 

which any disagreements are fully discussed and considered will result in decisions 

that are faithful to the law and respect prior precedent. 

The NLRB has rarely exercised its rulemaking capacity, relying instead on caseby-case decisionmaking. 

Question 11. What conditions do you believe are necessary for the NLRB to initiate the rulemaking process? 

Answer 11. The NLRB may initiate the rulemaking process only in a manner consistent with its statutory rulemaking authority, with the Administrative Procedure 

Act, and with any other applicable laws. The NLRB should have a sound policy 

basis for a decision to proceed through rulemaking. 

Question 12. What types of issues should be the subject of rulemaking? 

Answer 12. I would cite the Board’s rulemaking proceedings in 1989 establishing 

presumptively appropriate units in acute care hospitals, see 29 CFR 101.30, approved by the Supreme Court in American Hospital Association v. NLRB, 499 U.S. 

606 (1991), as an example of the types of circumstances where rulemaking is appropriate. 

Question 13. Do you think the Board should break from tradition and begin utilizing the rulemaking process? 

Answer 13. The Board has promulgated rules governing procedures in unfair 

labor practice, representation, and other types of cases. As I indicated above, I 

would cite the Board’s rulemaking proceedings in 1989 establishing presumptively 

appropriate units in acute care hospitals, see 29 CFR 101.30, approved by the Supreme Court in American Hospital Association v. NLRB, 499 U.S. 606 (1991), as an 

example of the types of circumstances where rulemaking is appropriate. 

Question 14. Do you believe it is necessary to have the full participation of all 

Board members in the rulemaking process, including the drafting of all documents 

related to that process before decisions are issued? Do you think minority views 

need to be consulted and their views carefully considered before significant regulatory decisions are made? 

Answer 14. When it engages in rulemaking, the Board must act in full compliance 

with its statutory rulemaking authority, the Administrative Procedure Act, and any 

other statutory requirements. If I am confirmed and a proposal for rulemaking were 

to come before the Board, I would fully familiarize myself with those statutory requirements and act in full compliance with those statutory commands. I believe all 

Board members have a statutory right and obligation to participate in any rulemaking process. Of course, full and adequate consultation among Board members 

will better insure that all relevant considerations are raised. If there is disagreement among members, the majority should fully consider the views of the minority 

before acting and the minority should fully consider the views of the majority before 

acting. 

Question 15. What benefits do you believe the NLRB could gain through rulemaking that exceed the Board’s traditional reliance on adjudication? 

Answer 15. As I stated in my prior answer, I would cite the Board’s rulemaking 

proceedings in 1989 establishing presumptively appropriate units in acute care hospitals, see 29 CFR 101.30, approved by the Supreme Court in American Hospital 

Association v. NLRB, 499 U.S. 606 (1991), as an example of the types of circumstances where the Board has achieved benefits in the areas of stability and 

greater predictability for employers, employees and labor organizations that it had 

not been able to obtain through adjudication. 

Question 16. What role should law and Supreme Court precedent have in rulemaking? 

Answer 16. The NLRB may initiate the rulemaking process only in a manner consistent with its statutory rulemaking authority, with the Administrative Procedure 

Act (APA), and with any other applicable laws. Of course, any rules must be consistent with Federal labor law itself. The Supreme Court’s decisions under the APA, 

50 

1Daily Labor Report, ‘‘Management Attorneys Say Unions Increasingly Using Corporate Campaigns,’’ By: Janet Cecelia Walthall, 1–19–10. 

Federal labor law, and any other applicable law are binding on the Board in rulemaking as in adjudication. 

Question 17. In 2007, you represented the plaintiff in Long Island Care at Home 

v. Coke before the Supreme Court. You were unsuccessful in arguing that the Court 

should overturn a Labor Department regulation that exempted home-care aides employed by third-party companies from the Federal minimum wage and overtime coverage under the Fair Labor Standards Act. Following the Supreme Court’s decision, 

you testified before the House Education and Workforce Committee where you stated that DOL’s adopted regulations ‘‘ . . . radically broadened the companionship exemption in a manner inconsistent with both Congress’ intent and the DOL’s treatment of babysitters.’’ 

If the NLRB were to undertake rulemaking, how would you handle instances 

where your personal interpretation of congressional intent and current regulation is 

in direct conflict with Supreme Court precedent? 

Answer 17. I would act in accordance with congressional intent and Supreme 

Court precedent. 

The Daily Labor Report recently reported 1 that organized labor is increasingly 

turning to ‘‘corporate campaigns’’ that attack a company’s reputation as a way to 

achieve union goals. 

Question 18. Do you think the law should be amended to specifically define a corporate campaign? 

Answer 18. I believe that question is properly addressed by Congress. 

Question 19. Have you ever participated in a corporate campaign? 

Answer 19. The term ‘‘corporate campaign’’ is not used in the National Labor Relations Act, as amended, or in any other Federal or State law that I am aware of. 

It has no precise definition. As counsel to various labor organizations, I have provided advice concerning efforts to assist employees to organize and obtain representation and efforts to reach agreement in collective bargaining. 

Question 20. Have you ever, through your work at the SEIU or AFL–CIO given 

counsel on how to organize and/or implement a corporate campaign? 

Answer 20. Please see my answer to your Question 19. 

Question 21. Do you think there should be any restrictions on anti-employer corporate campaigns? 

Answer 21. As stated above, the term ‘‘corporate campaign’’ is not used in the act 

or elsewhere in Federal or State law as far as I am aware. The term has no precise 

meaning. Various restrictions contained in Federal labor law might apply to activity 

engaged in during what is sometimes referred to as a corporate campaign, including 

the restrictions created by section 8(b)(4). Whether additional restrictions of some 

sort should be imposed is a question appropriately addressed by Congress. 

Question 22a. Do you think penalties for union misconduct should be increased? 

Answer 22a. As I have stated in answers relating to the Board’s authority to implement the provisions of the Employee Free Choice Act without congressional action, Congress has vested the Board with specific remedial authority in section 10 

of the Act. The NLRB has authority to fashion new remedies consistent with section 

10 and relevant Supreme Court precedent. Outside those bounds, use of new remedies must be authorized by Congress. Section 10(c) vests in the Board authority 

to order a party to take affirmative action, including re-instatement with or without 

back pay. I do not believe that section 10 currently vests in the Board authority to 

impose penalties. Thus, this question is one for Congress to resolve. 

Question 22b. As you know private union membership has steadily declined over 

the years and is currently at record lows. Do you think the NLRB has the responsibility under law to increase union participation? 

Answer 22b. No. 

Question 23. In a February 9, 2008 letter to Andy Stern, Sal Roselli, President 

of the SEIU United Health Care Workers West, wrote that: 

‘‘An overly zealous focus on growth—growth at any cost, apparently—has 

eclipsed SEIU’s commitment to its members. As labor leaders, we are obligated 

to place the needs of our members first and to uphold democratic principles not 

51 

only in the workplace, but also in our union. That is increasingly being blocked, 

circumvented and manipulated.’’ 

How do you assure members of Congress that the win-at-all-costs culture noted 

by Mr. Roselli as permeating your current place of employment will not carry over 

into your work at the NLRB, or impair or limit your judgment as a member of the 

NLRB? 

Answer 23. I have had no involvement in the dispute between SEIU and Mr. 

Roselli and the organization with which he is currently affiliated. If confirmed, I will 

apply the law as written fairly and even-handedly. 

Question 24. Do you believe that the rights of SEIU United Health Care Workers 

West members were blocked, circumvented or manipulated in any way? 

Answer 24. As stated above, I have had no involvement in the dispute between 

SEIU and Mr. Roselli and the organization with which he is currently affiliated. 

Question 25a. Mr. Roselli also noted that: 

‘‘You [Stern] and other international officers interfered in the affairs of the 

SEIU California State Council—our collective vehicle for State legislation and 

electoral action—using the imposition of a revised constitution and bylaws to 

prompt a presidential election when none was anticipated, then manipulating 

the per capita voting formula and procedures in order to produce the outcomes 

you desired.’’ 

Did you provide counsel to the SEIU concerning the affairs of the SEIU California 

State Council, or the implementation of a revised constitution and bylaws? Please 

explain. 

Answer 25a. No. 

Question 25b. In testimony given before the Senate Committee on Health, Education, Labor, and Pensions on February 2, 2010, you mentioned letters of support 

that were issued by management teams you have worked with in the past while representing the interests of labor. I regret that I have not been able to see a copy of 

the support letters you mentioned. A published hearing record will not be available 

so that I can access such letters prior to the vote on your confirmation due to the 

expedited nature of your hearing this second session of the 111th Congress. Please 

include in your written response copies of all letters you are aware of in support 

of your nomination. 

Answer 25b. Copies of all letters of support within my possession are attached. 

Question 26. In testimony before the HELP Committee on February 2, 2010, you 

clearly stated in response to a question to Chairman Tom Harkin that you will 

recuse yourself from all cases involving the SEIU. In testimony, you said this would 

apply to the first 2-year period following your resignation from the SEIU. However, 

in the questionnaire you submitted to the committee you said you would recuse 

yourself for a 1-year period. 

For how long a period will you recuse yourself from cases involving the SEIU? 

Answer 26. Two years, as I explain below. My answers to the HELP Committee 

questionnaire stated that I would abide by both the terms of the Code of Federal 

Regulations which require recusal for a period of 1 year and the terms of the President’s Executive Order which require recusal for a period of 2 years. Accordingly, 

pursuant to 5 CFR 2635.502, for a period of 1 year after I last provided services 

to a former client, including SEIU, I will not participate in any particular matter 

involving specific parties in which a former client is or represents a party, unless 

I am first authorized to participate, pursuant to 5 CFR 2635.502(d). In addition, I 

understand that as an appointee I am required to sign the Ethics Pledge under Executive Order No. 13490 and that I will be bound by the requirements and restrictions therein in addition to the requirements of 5 CFR 2635.502. Accordingly, 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 

a former client as those terms are defined in Executive Order No. 13490, including 

SEIU, unless I am first authorized to participate, pursuant to Executive Order No. 

13490 Sec. 3. I have entered into an ethics agreement with the National Labor Relations Board to fully abide by both of these sets of restrictions. Moreover, if at any 

time during my service on the Board a case comes before me relating to SEIU 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. Finally, in 

any such case where there is no actual conflict but my participation might be perceived as creating an appearance of conflict, I will consult with agency ethics offiVerDate Nov 24 2008 14:28 Dec 20, 2010 Jkt 035165 PO 00000 Frm 00055 Fmt 6633 Sfmt 6621 S:\DOCS\54758.TXT DENISE
52 

cials and review applicable rules and precedents to determine whether recusal 

under the particular circumstances presented would be appropriate. 

Question 27. Will you also similarly excuse yourself from cases involving your 

other employer, the AFL–CIO? For what period of time would you remove yourself 

from participation on matters related to the AFL–CIO? 

Answer 27. Yes. I will apply the same time periods described in my answer to 

your Question 26. 

Question 28. In questions for the record submitted to you on July 30, 2009, Senator Michael Enzi, Ranking Member of the Senate Committee on Health, Education, 

Labor, and Pensions, asked you the following question: ‘‘The Board annually evaluates and reports on the effectiveness of its programs. What management experience 

do you have in evaluating programs and what actions would you suggest the Board 

take to improve the evaluation of programs?’’ 

In your written response, you said: 

‘‘I have minimal management experience at this time. In addition, I have little knowledge of the Board’s existing evaluation and reporting procedures. For 

these reasons, I would not make any suggestions to improve the evaluation of 

programs until I have fully informed myself about the existing programs should 

I be confirmed.’’ 

Since this time, have you reviewed the Board’s evaluation and reporting procedures? 

Answer 28. No, I have not had the opportunity to do so. 

Question 29. If so, do you have suggestions for the Board to improve the evaluation of programs? 

Answer 29. Please see my answer to your Question 28. 

Question 30. Do you think the NLRB has adequate fiscal resources to carry out 

its work effectively and efficiently? 

Answer 30. I have not had a full and complete opportunity to review appropriations to the Board, the Board’s budget, and other relevant documents or to confer 

with all knowledgeable staff at the Board. Until I have the opportunity to do so, 

I will not form any conclusions about this matter. 

Question 31. Do you think the NLRB has sufficient staff to meet the demands 

placed on it? 

Answer 31. I have not had a full and complete opportunity to review appropriations to the Board, the Board’s budget, and other relevant documents or to confer 

with all knowledgeable staff at the Board. Until I have that opportunity to do so, 

I will not form any conclusions about this matter. 

LETTERS OF SUPPORT

NEW YORK UNIVERSITY, 

NEW YORK, NEW YORK 10012–1099, 

January 19, 2010. 

Hon. TOM HARKIN, Chairman, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

428 Dirksen Building, 

Washington, DC 20510. 

Hon. MIKE ENZI, Ranking Member, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

428 Dirksen Building, 

Washington, DC 20510. 

Re: Confirmation of Craig Becker as a Member of the NLRB 

DEAR CHAIRMAN HARKIN AND RANKING MEMBER ENZI: I have practiced and 

taught labor and employment law for over 30 years, hold the Dwight D. Opperman 

professorship at New York University School of Law, direct NYU’s Center for Labor 

and Employment Law, and serve as Chief Reporter for the American Law Institute’s 

Restatement (Third) of Employment Law. 

53 

I am writing in support of the confirmation of Craig Becker to be a member of 

the National Labor Relations Board (NLRB or Board), and I do on the following 

basis. 

The President, in my view, should enjoy a broad latitude in selecting members 

of his administration, including members of independent agencies like the NLRB. 

Congress has the responsibility to make sure that the President’s selections do not 

have disqualifying problems of competence or character; if the President’s nominees 

do pass that test and fall within a broad zone of acceptability, Congress has a reciprocal duty to confirm the President’s choices. That is particularly true with respect 

to the NLRB. There is a good deal of controversy over whether the NLRB still functions as an effective agency in enforcing statutory rights and obligations. Much of 

this controversy has played a role in the debates over the proposed Employee Free 

Choice Act, still under consideration in Congress. It is therefore in the interest of 

all—employees, employers, unions, judges and lawyers—that the Board operate with 

a full complement reflecting the various Presidential choices over time as to the best 

people for the job. 

It is clear that Mr. Becker passes the tests of competence and character and falls 

within the broad zone of acceptability. Although I have sometimes disagreed with 

his legal positions and his writings, I have consistently found his work to be the 

product of a highly intelligent, thoughtful person who knows and understands the 

labor law materials and is open to reasoned discussion. 

Based on my interactions with him, I am confident that he will be a most able 

member of this distinguished agency. 

I urge you to confirm Mr. Becker as a member of the Board. If you have any questions or wish to discuss this further, please advise. 

Sincerely, 

SAMUEL ESTREICHER, 

Dwight D. Opperman Professor of Law Director, 

Center for Labor & Employment Law; 

Co-Director, Institute of Judicial Administration. 

UNIVERSITY OF CALIFORNIA, SCHOOL OF LAW, 

IRVINE, CA 92697–8000, 

January 21, 2010. 

Hon. HARRY REID, Majority Leader, 

U.S. Senate, 

Washington, DC 20510. 

Hon. MITCH MCCONNELL, Minority Leader, 

U.S. Senate, 

Washington, DC 20510. 

Re: Confirmation of Craig Becker as a Member of the NLRB 

DEAR SENATOR REID AND SENATOR MCCONNELL: As teachers and scholars of labor 

law, we write to express our strong support for the confirmation of Craig Becker 

to be a member of the National Labor Relations Board. We believe firmly that, if 

confirmed, Mr. Becker will prove to be one of the most respected Board members 

in the history of the NLRB. 

Mr. Becker possesses unparalleled qualifications to be a member of the Board. He 

has practiced labor law for many years and also taught and written extensively 

about labor law and related subjects. Mr. Becker has had an enormous range of 

practical experience in the field of labor law, having represented a broad range of 

unions in the public and the private sector as well as many individual workers, both 

union members and nonmembers. He has argued cases in virtually every U.S. Court 

of Appeals and in the U.S. Supreme Court, many of them among the most important 

labor law cases of the last several decades. He has also taught labor law at several 

of our Nation’s finest law schools, including the University of Chicago, Georgetown 

and UCLA. His scholarship reflects a great respect for and deep knowledge of the 

law and weighs and considers all arguments in a fair and honest manner. His articles are widely cited, regularly used in law school classes, and admired by labor law 

scholars across the political spectrum. 

Despite Mr. Becker’s obvious qualifications to be a member of the NLRB, his opponents have made a series of misleading and inaccurate statements about him and, 

in particular, about his published work. We urge anyone considering Mr. Becker’s 

nomination not to rely on sound bites, fragments taken out of context, and 

misquotations, but to actually read Mr. Becker’s scholarly writing. 

54 

Those of us who know Mr. Becker personally as well as those of us who have read 

his work and are familiar with his professional reputation can attest to his integrity, fairness, and dedication to advancing Congress’ purposes in adopting Federal 

labor law and to the role of the NLRB. Without qualification we urge prompt confirmation of Mr. Becker to be a member of the NLRB. 

Sincerely, 

CATHERINE FISK, 

University of California, Irvine—School of Law. 

I am authorized to state that the following have read this letter and join it. The 

institutional affiliations are listed for purposes of identification only. 

James Brudney, Ohio State University, Moritz College of Law; Cynthia Estlund, 

New York University School of Law; Benjamin Sachs, Harvard Law School; David 

Abraham, University of Miami School of Law; James Atleson, State University of 

New York at Buffalo School of Law; Mark Barenberg, Columbia University Law 

School; Esta Bigler, Cornell University ILR School; Susan Bisom-Rapp, Thomas Jefferson Law School; Christopher Cameron, Southwestern University Law School; 

Susan Carle, American University, Washington College of Law; Kenneth Casebeer, 

University of Miami Law School; Carin Clauss, University of Wisconsin Law School; 

Lance Compa, Cornell University ILR School; Laura Cooper, University of Minnesota Law School; Roberto Corrada; Denver University School of Law; Marion 

Crain, Washington University School of Law; Charles Craver, George Washington 

University Law School; Ellen Dannin, Penn State University Dickinson College of 

Law; Kenneth Dau-Schmidt, Indiana University, Bloomington—School of Law; 

Henry Drummonds, Lewis & Clark—Northwestern School of Law; Fred Feinstein, 

University of Maryland School of Public Policy; Janice Fine, Rutgers University 

School of Management and Labor Relations; Matthew Finkin, University of Illinois 

Law School; Michael Fischl, University of Connecticut Law School; William Forbath, 

University of Texas Law School; Ruben Garcia, California Western School of Law, 

Julius Getman; University of Texas Law School; Michael Goldberg, Widener University School of Law; Alvin Goldman, University of Kentucky Law School; Jennifer 

Gordon, Fordham University Law School; Robert Gorman, University of Pennsylvania Law School; William B. Gould, Stanford University Law School; Joseph 

Grodin, University of California, Hastings College of Law; Michael Hayes, University of Baltimore Law School; Dorothy Hill, Albany Law School; William Hines, University of Iowa School of Law; Ann Hodges, University of Richmond Law School; 

Alan Hyde, Rutgers University Law School, Newark; Linda Kerber, University of 

Iowa College of Law and Department of History; Karl Klare, Northeastern University Law School; Thomas Kohler, Boston College Law School; Howard Lesnick, University of Pennsylvania Law School; Ariana Levinson, University of Louisville, Louis 

Brandeis School of Law; Anne Marie Lofaso, University of West Virginia Law 

School; Deborah Malamud, New York University Law School; Martin Malin, Chicago-Kent College of Law; Carlin Meyer, New York Law School; Gary Minda, Brooklyn Law School; Charles Morris, Southern Methodist University, Dedman School of 

Law; Maria Ontiveros, University of San Francisco School of Law; James Pope, Rutgers Law School—Newark; Cornelia Pillard, Georgetown University Law Center; 

Theodore St. Antoine, University of Michigan Law School; Paul Secunda, Marquette 

University Law School; Lorraine Schmall, Northern Illinois University Law School; 

Sidney Shapiro, Wake Forest University Law School; Joseph Slater, University of 

Toledo College of Law; Susan Stabile, St. Thomas University Law School; Katherine 

V.W. Stone, UCLA Law School; Lea VanderVelde, University of Iowa College of 

Law; Joan Vogel, Vermont Law School; Marley Weiss, University of Maryland Law 

School; Martha West, University of California, Davis—Law School; Donna Young, 

Albany Law School; and Noah Zatz, UCLA Law School. 

LANER MUCHIN, 

January 29, 2010. 

Hon. HARRY REID, Majority Leader, 

U.S. Senate, 

Washington, DC 20510. 

Hon. MITCH MCCONNELL, Majority Leader, 

U.S. Senate, 

Washington, DC 20510. 

Re: Confirmation of Craig Becker as a Member of the NLRB 

55 

DEAR SENATOR REID AND SENATOR MCCONNELL: As a lawyer who has represented 

employers in the private and public sectors for over 30 years, I am writing to describe my experiences with Craig Becker. 

Over the years, I have worked with Mr. Becker on a number of complex issues 

and cases that had significant implications for his union clients, and my employer 

clients. Although we were both aggressive advocates for our respective clients and 

their positions, we were always able to have an open dialogue. I believe that Mr. 

Becker always took the time to understand the issues from the employer’s side, and 

was willing to work creatively toward amicable resolutions of the issues. In other 

words, he is a problem-solver, a characteristic that is highly-valued in a lawyer. 

Based on my many experiences, I believe that Mr. Becker’s integrity is exceptional, as is his knowledge of labor law, and he will be fair, hard-working, and an 

asset to the National Labor Relations Board. 

Very truly yours, 

JOSEPH M. GAGLIARDO. 

SONNENSCHEIN NATH & ROSENTHAL LLP, 

CHICAGO, IL 60606–6404, 

January 28, 2010. 

Hon. MITCH MCCONNELL, Minority Leader, 

U.S. Senate, 

Washington, DC 20510. 

Re: Confirmation of Craig Becker as a Member of the NLRB 

DEAR SENATOR MCCONNELL: As an attorney who, for more than 47 years, has 

practiced exclusively in the area of Labor and Employment Law representing management, I am writing to urge the confirmation of Craig Becker as a member of the 

National Labor Relations Board. 

I have had the opportunity to work together with and in opposition to Mr. Becker 

on a number of matters involving a significant number of employers and employees, 

including litigation and collective bargaining negotiations. Throughout, he has consistently demonstrated an impressive grasp and appreciation of and deeply felt commitment and dedication to the principles enunciated by Congress and embodied in 

the National Labor Relations Act. 

I have read of the concerns expressed by some that Mr. Becker would prove ‘‘doctrinaire’’ and/or biased toward unions in his application of the NLRA. It is my honest opinion, based upon first-hand experience dealing with him, that these concerns 

are completely unfounded. On the contrary, I am convinced that Mr. Becker would 

demonstrate fairness, integrity, sound judgment and an abiding respect for all of the 

congressionally mandated rights of employers, unions, and employees alike. I respectfully urge you to support his confirmation. 

Sincerely, 

RICHARD L. MARCUS. 

LETTERS OF OPPOSITION

January 29, 2010. 

Hon. TOM HARKIN, Chairman, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

Washington, DC 20510. 

Hon. MICHAEL ENZI, Ranking Member, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

Washington, DC 20510. 

DEAR CHAIRMAN HARKIN AND RANKING MEMBER ENZI: The undersigned trade associations represent millions of employers of every size, in every sector, and region 

of the country. Unfortunately Mr. Craig Becker has been renominated to serve as 

a member of the National Labor Relations Board (NLRB) despite concerns that the 

employer community has previously expressed. We continue to urge you to oppose 

the nomination of Mr. Becker to the NLRB, however our letter is not intended in 

any way to express an opinion about the nominations of Mr. Mark Pearce or Mr. 

Brian Hayes to serve as members of the NLRB. 

Mr. Becker’s unorthodox views have been demonstrated through his previous written commentary of the National Labor Relations Act, the law he would be charged 

56 

with interpreting and enforcing should he be confirmed. Many of his beliefs would 

disrupt years of established precedent and the delicate balance in current labor law. 

We have significant concerns with the Board’s ability to radically interpret existing 

labor law should Mr. Becker be confirmed. 

As we have expressed before the public still deserves an opportunity through a 

formal confirmation hearing to hear from Mr. Becker directly as to whether he still 

believes in the positions espoused in his writings or whether his views on these 

issues have changed over time. It is troubling that despite our concerns the Administration has made it clear that they do not intend to nominate a more appropriate 

individual to serve on the Board. 

For these reasons, we continue to urge you to oppose the renomination of Mr. 

Craig Becker to become a member of the National Labor Relations Board. 

Sincerely, 

American Hotel and Lodging Association; American Organization of Nurse Executives; American Trucking Associations; Associated Builders and Contractors, Inc.; 

Associated General Contractors of America; College and University Professional Association for Human Resources Food Marketing Institute; HR Policy Association; 

Independent Electrical Contractors, Inc; International Foodservice Distributors Association; International Franchise Association; National Association of Manufacturers; National Association of Wholesaler-Distributors; National Federation of Independent Business; National Pest Management Association; National Ready Mixed 

Concrete Association; National Retail Federation; National Roofing Contractors Association; Printing Industries of America; Retail Industry Leaders Association; Society for Human Resource Management; Steel Manufacturers Association; and U.S. 

Chamber of Commerce. 

FEBRUARY 1, 2010. 

Hon. TOM HARKIN, Chairman, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

Washington, DC 20510. 

Hon. MICHAEL ENZI, Ranking Member, 

Committee on Health, Education, Labor, and Pensions, 

U.S. Senate, 

Washington, DC 20510. 

DEAR CHAIRMAN HARKIN AND RANKING MEMBER ENZI: The undersigned manufacturing employers and associations are united in our concern with the renomination 

of Craig Becker to serve as a member of the National Labor Relations Board 

(NLRB). 

The nomination of Mr. Becker poses a threat to our labor law system, as his views 

and interpretation of labor law would radically change the nature of the NLRB. In 

numerous academic journals and other writings, Mr. Becker has espoused views 

that indicate he believes the NLRB has the authority to make certain decisions that 

are pending in proposed legislation. Such views would limit employers’ ability to 

communicate with their employees regarding union organizing efforts and would 

promote a system of adversarial employee relations. Based on his previous statements, we feel Mr. Becker would direct the NLRB to rewrite current union election 

rules in favor of union organizers, a decision that should be left to Congress. In particular, we are concerned that Mr. Becker would use the actions of the NLRB to 

advance aspects of the jobs-killing Employee Free Choice Act. 

As employers, we feel that members of the NLRB should be unbiased and committed to the principles of fairness and balance that have developed our labor law 

system. Mr. Becker’s radical interpretation of these laws is not appropriate for members of the Board, who are charged with administering our Nation’s labor laws in 

an unbiased manner. 

For these reasons, we continue to urge you to oppose the renomination of Craig 

Becker to become a member of the National Labor Relations Board. 

Sincerely, 

A.O. Smith Corporation; A. Schulman; Accurate Castings, Inc.; Accuride International Inc.; Ace Manufacturing Industries; Aeries Enterprises LLC; Ahaus Tool 

and Engineering, Inc.; Ahresty Wilmington Corporation; Air Logistics Corporation; 

All American Mfg. Co.; Allegheny Technologies Incorporated; Allied Machine & Engineering Corp.; Allied Plastics Co., Inc.; Alloy Resources Inc.; Altadis USA, Inc.; 

AM Castle; AMB Enterprises, LLC; American Circuits, Inc.; American Coolair Corporation; American Dehydrated Foods, Inc.; American Felt & Filter Company; 

57 

American Foundry Society; American Hydro Corporation; American Lawn Mower 

Company; American Safety Razor Company; American Shizuki Corporation; American Shower Door; Amsco Windows; Anchor Fabricators, Inc.; Anthony Timberlands, 

Inc.; Aries Electronics Inc.; Arkansas State Chamber of Commerce/Assoc. Ind. of Arkansas; Arm-R-Lite Door Mfg. Company, Inc.; Arobotech Systems, Inc.; Arrow Adhesives Company; Artwoodworking & Mfg. Co.; ASC Profiles Inc.; Ashley Furniture Industries; Associated Industries of Massachusetts; Atlantic Mold & Machining Corp.; 

Atlas Machine and Supply Inc.; ATS Medical, Inc.; Auburn Gear, Inc.; Auto Truck, 

Inc.; Avtron Aerospace, Inc.; Bannish Lumber, Inc.; Batesville Products, Inc.; Beacon 

Converters, Inc.; Bead Industries, Inc.; Beck Steel; Bell Laboratories, Inc.; Belton Industries, Inc.; Bergsen Inc.; Berkley Screw Machine Products, Inc.; Berlin Metals; 

Bertch Cabinet Mfg., Inc.; Best Chairs, Inc.; BesTech Tool Corporation; Better 

Baked Foods, Inc.; Betts Industries, Inc.; BH Electronics, Inc.; Bicron Electronics 

Co.; Big D Metalworks; BioResearch Associates, Inc.; Bison Gear & Engineering 

Corp.; Blue Bell Creameries, L.P.; BlueScope Steel North America; Bollinger Shipyards, Inc.; Bommer Industries, Inc.; Boston Steel & Mfg. Co.; BPI, Inc; Braun 

Northwest, Inc; Brick Industry Association; Bridgestone Americas, Inc.; Brigham 

Exploration Company; Brinkman International Group, Inc.; Broan-NuTone LLC; 

Broderson Manufacturing Corp.; Brush Engineered Materials; Buckeye Fabricating 

Company; C and M Manufacturing Incorporated; Calgon Carbon Corporation; Cambridge Specialty Co.; Cameron Manufacturing & Design, Inc.; Cardinal Systems Inc.; 

Carter Products Co., Inc.; Case Systems, Inc.; CASHCO Inc.; CB Manufacturing & 

Sales Co., Inc.; CEMCO Inc.; Cemen Tech, Inc.; Centennial Bolt, Inc.; Central Bindery Company; Central States Fire App LLC; CFX Battery, Inc.; Chaney Enterprises; 

Channellock Inc.; Chatsworth Products, Inc.; Chemstar Products; Clinch-Tite Corp.; 

Clow Stamping Co.; CMD Corporation; Coast Controls, Inc.; Coastal Forest Resources; Coastal Plywood Company; Coating Excellence International; ColorMatrix 

Corporation; Commercial Cutting and Graphics, LLC; Conestoga Wood Specialties 

Corporation; Construction Specialties, Inc.; Con-way, Inc.; Cooper Tire & Rubber 

Company; Corbett Package Company; Crafted Plastics, Inc.; CrossCountry Courier; 

CRT, Custom Products, Inc.; Crysteel Manufacturing Incorporated; Custom Applied 

Technology Corp.; Custom Tool and Grinding, Inc.; Dakota Awards, Inc.; Dakota 

Specialty Milling, Inc.; Dart Container Corporation; Davron Technologies, Inc.; Dayton Industries Inc.; Deist Industries, Inc.; Delta Power Company; Dews Research 

Laboratories, LLC; Dietz & Watson, Inc.; Dixie Printing & Packaging Corporation; 

Dixon Insurance Inc.; DLH Industries, Inc.; Domain Communications LLC; Don R 

Fruchey, Inc.; DORMA Architectural Hardware; Dorner Mfg. Corp.; Drawn Metals 

Corporation; Drenth Brothers Inc.; DRT Mfg. Co.; DTR Industries, Inc.; Duke Manufacturing Co.; DuPage Machine Products; Duraclass by TBEI; Du-Well Grinding Enterprises, Inc.; E&E Manufacturing Co. Inc.; E.D. Bullard Company; East Penn 

Manufacturing Co., Inc.; East-Lind Heat Treat, Inc.; Eclipse Inc.; Edison Price 

Lighting; Elan Technology, Inc.; Electro Arc Mfg. Co. Inc.; Electronic Systems, Inc.; 

Ellwood Group, Inc.; EM-CO Metal Products, Inc.; Emery Corporation; Energy Exchanger Company; Engineered Building Design, L.C.; Ervin Industries; Everhard 

Products, Inc.; Exxel Outdoors, Inc.; F.C. Brengman & Associates; F.N. Sheppard & 

Co.; Falcon Plastics, Inc.; Fargo Assembly Co.; Fiber Resources, Inc.; Fiberglass 

Coatings Inc.; Flambeau, Inc.; Flexcon Industries Inc.; FONA International; Food 

Services of America; Forrest Machine, Inc.; Foster Transformer Co.; Founders Insurance Group, Inc.; Fox Valley Molding, Inc.; Foxx Equipment Company; Franklin 

International; Frasal Tool; Fredon Corporation; Freedom Corrugated, LLC; Freeport 

Welding & Fabricating, Inc.; GCR Associates; Gemini, Inc.; General Machine Products Co.; General Steel and Supply Company; Genest Concrete Works, Inc.; Geokon 

Inc.; Glas-Col, LLC; Glasforms Inc.; Glastender, Inc.; Glier’s Meats Inc.; Globe Products Inc.; Gold’n Plump Poultry; Gossner Foods Inc.; Grande Cheese Company; 

Granite Rock Company; Graphite Metallizing; Green Bay Packaging Inc.; Grossman 

Iron & Steel Company; Gruber Systems Incorporated; Guardian Industries Corp.; 

Hamilton Caster & Mfg. Co.; Hammond Group, Inc.; Harden Furniture Company, 

Inc.; Hardwood Products Company; Harold Beck & Sons, Inc.; Henry Brick Company, Inc.; Henry Molded Products; Hercules Drawn Steel Corporation; HES Inc.; 

HFI, LLC.; Hialeah Metal Spinning, Inc.; High Company LLC; High Industries, Inc.; 

Hiwasse Manufacturing Company, Inc.; Hobson & Motzer, Inc.; Holden Industries, 

Inc.; Horizon Steel Co.; HTI Cybernetics; Hudapack Metal Treating Companies; 

Huron Automatic Screw Co.; Huron Automatic Screw Company; Illinois Tool Works 

Inc.; Industrial Fasteners Institute; Industrial Metal Fab, Inc.; Industrial Nut Corp.; 

Industrial Spring Corporation; Interlocking Concrete Pavement Institute; International Hydraulics Inc.; Iten Industries; J.C. Steele & Sons, Inc.; J.T. Fennell Co., 

Inc.; Jaquith Industries Inc.; Jasper Desk Company, Inc.; JELD-WEN; Jesco Industries Inc.; Jobbers Moving & Storage; John Sterling Corporation; Johnsen Trailer 

58 

Sales, Inc.; Johnsonville Sausage LLC; Jorgensen Conveyors, Inc.; Kapstone Paper 

and Packaging Corp.; Kell-Strom Tool Company Inc.; Kercher Machine Works, Inc.; 

Keystone Nitewear Co. Inc.; Kitchen Cabinet Manufacturers Association; Klann Incorporated; Kleenair Products Co.; Kleenair Products Co.; Koike Aronson, Inc.; 

Koller-Craft Plastic Products; Konz Wood Products; Kuryakyn Holdings, Inc.; L.D. 

McCauley, LLC; La Deau Hinge Company; Lamiglas, Inc.; Lapp Insulators LLC; 

Laserage Technology Corporation; Layton Truck Equipment Co., LLC; Leech Carbide; LEECO Spring International; Leed Himmel Ind; Lifoam Industries; Liftmoore, 

Inc.; Lord Corporation; Lovejoy Tool Company, Inc.; LSI Industries Inc.; LSI Metal 

Fabrication Division of LSI Industries Inc.; LSI MidWest Lighting; Luick Quality 

Gage & Tool, Inc.; Lunar Industries, Inc.; M&M Hi Tech Fab, LLC; Mack Boring 

and Parts Co.; Mansfield Industries Inc.; Markel Corporation; Mar-Mac Wire, Inc.; 

Martindale Electric Company; Massachusetts Container Corp.; Materials Processing, 

Inc.; Mathews Brothers Company; Mathison Metalfab, Inc.; Mazak Corporation; 

McAlpin Industries, Inc.; McNaughton & Gunn, Inc.; McNichols Company; M-D 

Building Products, Inc.; Meadows Mills Inc.; Merrick Pet Care; Merritt Equipment 

Co.; Metal Moulding Corp Metal Powder Industries Federation; Metal Products 

Company; Metallized Carbon Corporation; Metals Service Center Institute; 

Metalworks Inc.; MET-L-FLO Inc.; Metl-Span LLC; MFRI, Inc.; Micro Abrasives 

Corporation; Mid Atlantic Manufacturing; & Hydraulics Inc.; Middletown Tube 

Works, Inc.; Midmark Corporation; Midwest Fabricating Company; Midwest Metal 

Products, Inc.; Mike-sells Potato Chip Company; Milbank Manufacturing Company; 

Miles Fiberglass And Composets; Mina Safety Appliances Co.; Mississippi Lime 

Company; Modern Metal Processing, Inc.; Molded Fiber Glass Companies; Montana 

Silversmiths Inc.; Moore Industries International Inc.; Morgan Ohare, Inc.; MTD 

Products Inc.; MTH Pumps; Mullinix Packages, Inc.; N.C. Industries, Inc.; NACCO 

Industries, Inc.; National Association of Manufacturers; National Bronze Mfg.; 

National Capital Flag Co. Inc.; National Ceramic Company; National Solid Wastes 

Management Association; National Tube Form; Nebraska Chamber of Commerce & 

Industry; Nevada Heat Treating, Inc.; Nevada Manufacturers Association; New Jersey Business & Industry Association; Nordex, Incorporated; North American Association of Food Equipment Manufacturers; North American Die Casting Association; 

North Dakota Chamber of Commerce; North Dakota Petroleum Marketers & North 

Dakota Retail Associations; Northeast PA Manufacturers & Employers Association; 

Northeast Prestressed Products; Northern Concrete Pipe Inc.; Nosco CTX; Nosco, 

Inc.; Novelis; NPC, Inc.; O. F. Mossberg & Sons, Inc.; Oil City Iron Works, Inc.; OilDri Corporation of America; Olympian Precast, Inc.; Olympian Precast, Inc.; OMCO 

Holdings, Inc.; Omega Design Corporation; Omega Precision Corp.; Open-Ended Response; OSI/ISI/SunnyMaids; Paper machinery corporation; Parkway Products; 

Parts Depot Inc.; Paulo Products Company; Pawling Corporation; Peerless Saw 

Company; Pella Corporation; Pennsylvania Manufacturers’ Association; Penske Corporation; Penske Truck Leasing; Pepsi-Cola Bottling Co., Inc. of Norton; Pepsi-Cola 

Bottling Company of New Haven, MO; Pequot Tool & Mfg., Inc.; Perlick Corporation; Pete Lien & Sons, Inc.; Peterson Manufacturing Co.; PGT Industries, Inc.; 

Phoenix Electric Mfg. Co.; Pine Hall Brick Co., Inc.; Plastic Molded Concepts; 

Plasticolors, Inc.; Plastics One; PMF Industries, Inc.; Polyfab Corp; Portec, Inc.; 

Power Curbers Inc.; PPG Industries; PQ Corporation; Prairie Tool Co. Inc.; Precision 

Automation Company, Inc.; Precision Machined Products Association; Precision 

Steel Warehouse, Inc.; Pretzels, Inc.; Price Pump Company; Printed Specialties Inc.; 

Process Equipment, Inc.; Production Specialties Corporation; Quadrant Tool and 

Manufacturing; Quality Chaser Company; Radiant Steel Products Company; Radix 

Wire Company; Rain Flow USA, Inc.; Rainey Road Holdings, Inc.; Rampe Mfg. Co. 

Torque Transmission Division; Ramsey Products Corporation; Ranco Fertiservice, 

Inc.; RdF Corporation; Red Bud Industries, Inc.; Reed Mfg. Services; Remanco Hydraulics Inc.; Reuther Mold & Mfg. Co.; Riggs Industries and subsidiaries; Roaring 

Spring Blank Book Co.; Roberts Automatic Products, Inc.; Robroy Industries; Rock 

Industries, Inc.; RoMan Manufacturing, Inc.; Roppe Corporation; Roquette America, 

Inc.; Roth Horowitz, LLC; Route 94 Consulting; ROW, Inc.; RTI International Metals, Inc.; Rugby Manufacturing; Schatz Bearing Corporation; Scot Forge Company; 

Scott Douglas Porter, Esq.; Scott Metals, Inc.; Seals Eastern, Inc.; Searing Industries; SGS Tool Company; Shar Systems, Inc.; Showplace Wood Products, Inc.; 

Shultz Steel Co.; Signal Mountain Cement Company; Silbond Corporation; Sioux 

Corporation; Siplast, Inc.; Sirois Tool Co., Inc.; SJE Rhombus; Smith Setzer & Sons, 

Inc.; Solar Atmospheres Corporation; Sommer Metalcraft Corporation; Southco Industries, Inc.; Southeastern Hose, Inc.; Southern Alloy Corporation; Southern Champion Tray LP; Southland Tube, Inc.; Spirax Sarco, Inc.; Spuncast, Inc.; St. Armands 

Baking Co.; Standex International Corporation; Star Cutter Company; Star Iron 

Works, Inc.; Steel Manufacturers Association; Steelscape, Inc.; Steffes Corporation; 

59 

Stellar Industries, Inc.; Sterking Engineering Corp.; Sterling Engineering Corporation; Sterling Machine Co., Inc.; Stone City Products, Inc.; Stoner, Inc.; Stoneridge 

Inc.; Streator Dependable Mfg.; Strongwell; Sturm, Ruger & Co., Inc.; Suhner Manufacturing, Inc.; Summers Manufacturing Co., Inc.; Sunnyside Corporation; Superior 

Graphite Co.; Superior Oil Company, Inc.; Superior Woodcraft, Inc.; Surpass Chemical Co., Inc.; Swanson Industries, Inc.; Sweet Street Desserts; Syncro Corporation; 

Systems Services of America, Inc.; Tailored Label Products; TBEI, Inc.; TCI, LLC; 

Teakdecking Systems, Inc.; Techsys Chassis, Inc.; Tecumseh Packaging Solutions, 

Inc.; Tegrant Corporation; TekTone Sound & Signal Mfg., Inc.; Templeton Coal 

Company, Inc.; Tennessee Chamber of Commerce & Industry; Tennsco Corp.; TenTec, Inc.; Texas Association of Business; Textile Rental Services Association of 

America; The Adams Company; The Challenge Machinery Company; The DUPPS 

Co.; The Envelope Printery, Inc.; The Hill and Griffith Company; The KirkHabicht Company; The Knapheide Manufacturing Company; The Manitowoc Company, Inc.; The MasonBox Co.; The Nelson Co. Inc.; The ROHO Group; The Schwan 

Food Company; The Scotts Miracle-Gro Company; The Sheffer Corporation; The 

Shockey Companies; The Timken Company; ThermoSafe Brands; Thomas Instrument Co.; Thompson Management Associates; Thomson Lamination Company, Inc.; 

ThyssenKrupp Waupaca, Inc.; Tiefenbach North America, LLC; Tiffin Powder Coating Specialists; Timber Truss Housing Systems, Inc.; Torco Inc.; Transducers Direct, 

LLC; Transportation Costing Group, Inc.; Tree Top, Inc.; Trim-Tex, Inc.; Trumpf 

Inc.; Tubodyne Company Inc.; Twin City Roofing, LLC; Tyco Electronics; Ultra Tech 

Machinery Inc.; Unex Manufacturing Inc.; United Equipment Accessories, Inc.; 

Uniweld Products Inc.; Unlimited Services; USG Corporation; Utility Trailer Manufacturing Company; Valley Converting Co., Inc.; Vanamatic Company; Ventahood, 

Ltd.; Vermeer; Virginia Manufacturers Association; WMI; W.R. Meadows, Inc.; 

Wagstaff, Inc.; Wahpeton Breckinridge Area Chamber of Commerce; Walnut Custom 

Homes, Inc.; Walters Brothers Lumber Mfg., Inc.; Warren Distribution, Inc.; Waste 

Equipment Technology Association; Waukesh Metal Products; Weiss-Aug Co. Inc.; 

Weldon Solutions; Werthan Packaging, Inc.; WESCO International, Inc.; Western 

extrusions; Westside Finishing Co., Inc.; Wildeck, Inc.; Williams-Pyro, Inc.; Winslow 

LifeRaft Company; Wire Belt Company of America; Wisconsin Valley Concrete Products Co.; Wood Connection, Inc.; Wood’s Powr-Grip Co., Inc.; WPT Power Transmission Corp.; Xybix Systems, Inc.; Yancey’s Fancy, Inc.; Young’s Welding, Inc.; 

Zippo Manufacturing Co. 

[Whereupon, at 5:07 p.m. the hearing was adjourned.] 

Æ