[Senate Hearing 111-717]
[From the U.S. Government Printing Office]



                                                        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













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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                       TOM HARKIN, Iowa, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming
BARBARA A. MIKULSKI, Maryland        JUDD GREGG, New Hampshire
JEFF BINGAMAN, New Mexico            LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington             RICHARD BURR, North Carolina
JACK REED, Rhode Island              JOHNNY ISAKSON, Georgia
BERNARD SANDERS (I), Vermont         JOHN McCAIN, Arizona
SHERROD BROWN, Ohio                  ORRIN G. HATCH, Utah
ROBERT P. CASEY, JR., Pennsylvania   LISA MURKOWSKI, Alaska
KAY R. HAGAN, North Carolina         TOM COBURN, M.D., Oklahoma
JEFF MERKLEY, Oregon                 PAT ROBERTS, Kansas
AL FRANKEN, Minnesota                
MICHAEL F. BENNET, Colorado
                                     
                      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)

  

 
                   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.
    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 five-member 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 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 trust this committee will be vigilant in 
holding nominees accountable 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.
    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, nonunion 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 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 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 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 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 employers' 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 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.
    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 
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.

                       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 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, short-
duration, 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 
themselves 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.
    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 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 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.
    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.
    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.
    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.]

                          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.

    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.

    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.''

    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 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 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 pre-election 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 imposition 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 health-care 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, 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 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?
    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 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 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 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 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.

    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''.
    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.
     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 card-check 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.

    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.

    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 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 
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 long-time 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 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 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.

    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 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 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 academic 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 case-by-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, 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.
---------------------------------------------------------------------------
    \1\ Daily Labor Report, ``Management Attorneys Say Unions 
Increasingly Using Corporate Campaigns,'' By: Janet Cecelia Walthall, 
1-19-10.

    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 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 officials 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.
    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.
    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

    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 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; 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 
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.; Oil-Dri 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; 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.; 
Ten-Tec, 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 Kirk-
Habicht 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.]