Radical Union Lawyer Nicole Berner Renominated by Joe Biden

Biden 4th Circuit judicial nominee Nicole Berner spraypainting "Forced Unionism Rules" and "No Right to Work" with an SEIU spray can while President Joe Biden says "She'll be the best judge ever"
Biden judicial nominee Nicole Berner has a track record of mindlessly repeating union bosses’ anti-Right to Work diatribes and defending their schemes to profit at the expense of the disabled. (Credit: A. F. Branco For NRTWC)

Big Labor Bosses’ Smear Artist Could Be Elevated to Appeals Court

Today, anyone with even a passing knowledge of labor history knows that for decades, including the early 1940’s, when the national movement in favor of Right to Work protections for employees was just gaining traction, most American Federation of Labor (AFL)-affiliated unions were unabashedly racist.

In the words of Herbert Hill, the labor director of the NAACP from 1951 to 1977, most AFL unions at that time either “excluded Negro workers from membership,” thus “preventing their employment in union-controlled jobs,” or engaged in other “discriminatory practices.” 

In 1941, the AFL hierarchy rejected a resolution condemning officers of affiliated unions who openly favored job discrimination against black Americans.

In light of these and other well-known facts about Big Labor advocacy of segregated workplaces during the 1940’s, only an ignorant or dishonest partisan of forced unionism could claim that people commonly supported Right to Work at that time in order to perpetuate workplace segregation.

One such partisan is veteran Service Employees International Union (SEIU) lawyer Nicole Berner, whom Big Labor President Joe Biden now seems determined to appoint to a lifetime judgeship on the U.S. Court of Appeals for the 4th Circuit.

‘Hard to Believe’ Nicole Berner ‘Could Be a Neutral Enforcer of Labor Law’

In late 2023, Ms. Berner’s nomination ran into fierce opposition in the U.S. Senate Judiciary Committee. Panel members representing Right to Work South Carolina and Arkansas questioned her sharply about her brazen smear of the Right to Work movement, in a 2018 speech, as “deeply racist” in its origins.

National Right to Work Committee Vice President Matthew Leen commented:

“Not surprisingly, Nicole Berner could offer no remotely plausible explanation as to how anyone during the 1940’s could have believed he or she would perpetuate segregation by denying special legal privileges to segregated unions.

“It seems that, as SEIU bosses’ general counsel, Ms. Berner thought it was her job to defend any and all stances taken by SEIU President Mary Kay Henry and her lieutenants, no matter how ugly or absurd.

“To say the least, such a concept of lawyering doesn’t befit a federal judge. It is hard to believe Ms. Berner could be a neutral enforcer of labor law.”

Right to Work Urges Every Senator to Oppose Berner Nomination

In addition to serving SEIU bosses with her transparently dishonest anti-Right to Work rhetoric, Ms. Berner has defended some of their most shady schemes of all time in court. 

For example, as a key player on the SEIU legal team for the Supreme Court’s Harris v. Quinn case in 2014, Ms. Berner helped defend SEIU bosses’ sleazy practice of profiting from the disabled by repurposing Medicaid funds intended for their home care. 

This was accomplished with the help of Big Labor state politicians who agreed to redefine home caregivers, typically close relatives of the disabled patients, as “public employees” for the purpose of forcing them to bankroll a union. 

(Fortunately, a Supreme Court majority ultimately ruled against the SEIU brass in Harris, agreeing with National Right to Work Legal Defense Foundation attorneys who argued the case and their care-provider clients that the SEIU’s compulsory-dues scheme was unconstitutional.)

“Given her long record of carrying water for forced unionism,” said Mr. Leen, “the Biden Administration probably expected Ms. Berner’s judicial nomination would be too controversial to make it through the Senate in 2023.

“This January 8, Mr. Biden doubled down, renominating her for the 4th Circuit. And since the Democrat caucus now holds a 51-49 majority in the Senate, and Democrat senators normally vote in lockstep with the President, her confirmation could easily happen soon.

“On January 18, the Judiciary Committee rubber-stamped the Berner nomination in an 11-10 vote, with all Democrat senators on the panel voting ‘yes’ and all Republicans voting ‘no.’

“But the Committee remains determined to fight to block the confirmation of this tunnel-visioned champion of compulsory unionism to the federal judiciary.”

In a letter recently sent to every senator, National Right to Work President Mark Mix underscored the dangers of the Berner nomination as he called for her defeat on the Senate floor, since she “has demonstrated she cannot be trusted to protect the rights of individual workers who oppose unionization.”

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