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NLRB Nominee Becker Blocked by Senate Filibuster

February 9, 2010
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Two Democrats joined Senate Republicans in a filibuster Tuesday, February 9, to block a hotly contested nomination to the National Labor Relations Board.

Sen. Ben Nelson, D-Nebraska, asserted in a February 8 statement that nominee Harold Craig Becker “would take an aggressive personal agenda to the NLRB.”

Nelson’s misgivings reflect those voiced by business groups and Republicans, who have objected to Becker for months because of his pro-union stances. Sen. Blanche Lincoln, D-Arkansas, also voted to filibuster Becker.

The GOP was successful in preventing the end of Senate debate on Becker, 33-52. Under Senate rules, 60 votes are required to invoke cloture, which is the move to a final vote.

Democrats denounced what they called Republican obstructionism, saying Becker is an outstanding professor and union-side lawyer whose fairness and professionalism have been praised by attorneys representing management.

The Senate vote does not necessarily end Becker’s hopes of joining the NLRB. His nomination can be brought up again. President Barack Obama also can make a recess appointment when the Senate adjourns for the week-long Presidents Day recess after February 12.

Under a recess appointment, Becker could serve for nearly two years.

AFL-CIO president Richard Trumka encouraged Obama to make such a move.

“It is reprehensible that a minority in the U.S. Senate has blocked an up-or-down vote on Craig Becker,” Trumka said in a statement. “Once again, a Republican-led filibuster has put political interests over the needs of America’s working families. We support President Obama’s expressed willingness to make recess appointments of critical posts in the federal government if that’s what it takes to get around minority delay and obstruction.”

The U.S. Chamber of Commerce, which was among several business groups fighting against Becker, urged Obama to find a different nominee.

“A recess appointment of this controversial nominee, instead of a new consensus candidate, definitely would send the wrong signal, given the clear lack of support expressed by the Senate,” said Glenn Spencer, executive director of the chamber’s Workforce Freedom Initiative, in a statement.

The Becker nomination provided the first opportunity for Sen. Scott Brown, R-Massachusetts, to participate in a GOP filibuster. Brown scored a major political upset in winning a January special election to fill the seat left vacant by the death of Democratic Sen. Edward Kennedy.

Brown moved his swearing-in up by a week in order to cast a vote on Becker, a law professor and associate general counsel for the Service Employees International Union and the AFL-CIO.

The impasse over Becker means that the five-member NLRB must continue to operate with two members, as it has since January 2008.

The hold-up on Becker’s nomination also leaves in limbo two other nominees—Mark Pearce, a Democrat, and Brian Hayes, a Republican. The three have been presented as a package. Pearce and Hayes have generated no controversy.

A case before the Supreme Court this term could determine the validity of rulings by the two-member NLRB, which oversees private-sector collective bargaining and adjudicates labor-management disputes.

The filibuster could have been foreseen during an appearance by Becker on February 3 before the Senate Health, Education, Labor and Pensions Committee, where he failed to ease Republican concerns about provocative law journal articles in which he asserted that companies should have no voice in union elections.

Republicans and business groups fear that Becker and a Democratic majority on the NLRB would try to implement aspects of the Employee Free Choice Act through its decisions. The bill that would make it easier for workers to form a union is currently stalled in the Senate.

Becker told the Senate labor committee that his writings were an academic exercise meant to foster debate and said that as an NLRB member he would respect the authority of Congress to make labor law.

Sen. Mike Enzi, R-Wyoming and the ranking Republican on the Senate labor committee, remained adamantly opposed to Becker. He questioned whether Becker would adhere to labor law.

Enzi cited a recent proposed rule by the Democratic majority on the National Mediation Board to overturn a 75-year regulation governing union elections in the airline and railway industries.

Two newly appointed members of the mediation board voted to allow bargaining units to form when a majority of participants in an organizing election vote in favor, rather than the majority of workers in the proposed unit.

Enzi warned that similar rulings could emanate from the NLRB if Becker joins the board, roiling management-labor relations.

“It’s essential that we not allow the balance to be upended now, at this critical time for our economy,” Enzi said.

Sen. Tom Harkin, D-Iowa and chairman of the Senate labor committee, said the mediation board was operating within its purview but that the NLRB would be going outside of its bounds to implement the Employee Free Choice Act—a parameter that Becker respects.

Harkin used the economy as an argument for appointing Becker to the NLRB. He said the Bush administration had not protected workers’ rights to form a union and bargain for higher wages and better benefits.

“We need to put this agency back on track,” Harkin said. “My colleagues seem to have a problem with Mr. Becker because he’s a union lawyer—and a damn good one.”

—Mark Schoeff Jr.

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