• Labor Board Member Becker Takes Narrow View of Recusal Obligations
  • June 24, 2010 | Author: Michael J. Lotito
  • Law Firm: Jackson Lewis LLP - San Francisco Office
  • Despite significant opposition from the employer community and the Senate placing a hold on his nomination, President Barack Obama recently made a recess appointment of Craig Becker, formerly Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations (AFL-CIO), to the National Labor Relations Board.  During the Senate’s consideration of his nomination, Mr. Becker refused to provide details as to the type of cases from which he would recuse himself should he become a Board member.  Last week, in denying 12 of 13 motions for recusal filed by the National Right to Work Foundation, Member Becker expressly stated that only in the most limited of circumstances would his past advocacy on behalf of the SEIU and organized labor require recusal.  Not unexpectedly, Mark Mix, President of the NRTW, immediately stated, “By announcing his weak recusal standards, Craig Becker has made a mockery of the much-touted Obama ethics pledge....Craig Becker’s recusal standards would be comical if the livelihoods of hardworking Americans were not at stake.”

    In a lengthy opinion ruling on the recusal motions in Pomona Valley Hosp. Med. Ctr., 355 N.L.R.B. No. 40 (June 8, 2010), Member Becker responded to each of the five grounds for recusal asserted by the NRTW in 13 pending cases. 

    Member Becker did recuse himself from one pending case - Dana Corp. - because he co-authored a brief filed in the case on behalf of the UAW, a party, and the AFL-CIO as amicus curiae.  In explaining this decision, Member Becker cited to existing case law that stands for the principle that “[t]he fundamental requirements of fairness in the performance of [quasi-judicial] functions require at least that one who participates in a case on behalf of any party, whether actively or merely formally by being on pleading or briefs, take no part in the decision of that case by any tribunal on which he thereafter may sit.”

    However, Member Becker explained that he was rejecting the motion for recusal in the 12 other pending cases for the following reasons:

    1. Any assertion of pre-judgment of any pending case is misguided and recusal is not mandated based on prior public statements or scholarly writings.  Citing existing case law, Becker wrote, “There are sound policy reasons rooted in Federal administrative law for making a distinction between expressions of opinion about policies and expressions of opinions of a particular dispute.  The Federal Courts have recognized this and made clear that ‘statements on a policy issue related to [a] dispute leave an adjudicatory officer ‘capable of judging a particular controversy fairly on the basis of its own circumstances.’”
    2. SEIU locals being parties is not grounds for recusal.  Member Becker explained that while he will recuse himself for two years from any cases in which the SEIU International, his former employer, is a party, he will not recuse himself from all cases involving SEIU locals as “courts have clearly distinguished local unions as autonomous entities separate and apart from international unions with which they are affiliated.”  Member Becker noted that there are over 150 locals, many of which have their own legal staff and that he had no dealings with the majority of these locals.  Member Becker did acknowledge that he may need to recuse himself from certain cases involving SEIU locals if he or another member of SEIU’s legal staff represented the local union.  Interestingly, Chairman Wilma Liebman has used a broader standard for recusing herself from cases involving Teamster locals based on her prior service for the Teamsters International Union. 
    3. Alleged relationships with counsel for Unions in pending cases are not grounds for recusal.  Member Becker rejected any assertion that he had a close relationship with union counsel in two pending cases and stated that, regardless, “professional contacts and relationships do not create a basis for recusal in all cases in which the firms appear on behalf of a party....The Federal Courts have made it clear that ordinary professional relationships and even personal relationships between judges and lawyers are not grounds for disqualification.”
    4. NRTW Foundation attorneys representing parties is not grounds for recusal.  After first noting that the NRTW Foundation is neither a party nor counsel to a party in any of the subject cases, Member Becker stated that he harbors no hostility towards Foundation attorneys.  He then stated that even if he had expressed hostility in the past, “bias against a lawyer, even if found to exist, without more is not bias against his client.”  And while Member Becker acknowledged disagreement with the Foundation’s positions, he contends “[s]uch disagreement on policy questions is not grounds for recusal.”

    While Member Becker assured all parties before the Board that “a reasonable person appearing before the Board will distinguish between the roles [he] played as an advocate and scholar in the past [and his current position]” and that he will “well and faithfully discharge the duties of [his] office,” the employer community must recognize the potential significant changes to NLRB jurisprudence on the horizon with a pro-labor majority on the Board for the first time in years.