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NLRB Nominee Fails to Assuage Business Community

February 3, 2010
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A controversial nominee for a panel that oversees private-sector collective bargaining distanced himself in a Senate hearing from articles he authored that question whether management can participate in union elections.

The appearance by Harold Craig Becker on Tuesday, February 2 before the Senate Health, Education, Labor and Pensions Committee failed, however, to assuage corporate concerns that he will try to implement through administrative means labor law changes contained in a bill that is stalled on Capitol Hill.

The Senate labor committee is set to vote Thursday, February 4, on Becker’s nomination to the National Labor Relations Board. Action by the full Senate may come as soon as next week.

“We will have this as expeditiously as possible on the floor,” said Sen. Tom Harkin, D-Iowa and chairman of the committee.

Business groups assert that Democrats are trying to get Becker confirmed before Sen.-elect Scott Brown, R-Massachusetts, is sworn into office. Brown, who won a special election to replace the late Sen. Edward Kennedy, will be seated on February 11.

Harkin said he “bent over backwards” to accommodate Republicans by holding the hearing. NLRB nominees usually don’t appear before the committee.

When Brown enters the Senate, the GOP ranks will increase to 41, enough members to sustain a filibuster. Another nominee who has met Republican resistance, Patricia Smith, tapped as Department of Labor solicitor, survived a filibuster attempt on Monday, February 1, and appears set for Senate approval this week.

The Becker nomination was halted last year when Sen. John McCain, R-Arizona, placed a hold on it. Becker was renominated by President Barack Obama in January.

At the hearing this week, McCain expressed frustration with Becker but did not indicate whether he would stop blocking the nomination.

Senators questioned Becker about a 1993 Minnesota Law Review article in which he wrote that “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.”

Becker opponents argue that such assertions foreshadow the way that he would try to implement provisions of the Employee Free Choice Act through NLRB rulings. The board will have a 3-2 Democratic majority if Becker and two other nominees are approved.

The Employee Free Choice Act, which is stuck in the Senate as supporters seek the 60 votes required to break a filibuster, would allow workers to organize by signing authorization cards. Under current law, employers can insist on a secret-ballot election supervised by the NLRB.

If confirmed for the NLRB, Becker said that he would adhere to labor law. He argued that his writings were an academic exercise meant to provoke debate. Becker, who is associate general counsel for the Service Employees International Union, has served as a professor at Georgetown University, the University of Chicago and the University of California, Los Angeles.

The tall, lanky, soft-spoken Becker looked the part of an academic at the hearing. In calm, measured tones, he explained that he understood the difference between being a scholar and serving as an NLRB adjudicator.

“Part of that [NLRB] role is to respect the will of Congress,” Becker said. “The law is clear that … an alternative route to certification rests with Congress. It’s clear that employers … have an indisputable right to express their views on whether employees can unionize.”

Those words provided little comfort to the business community.

“The bottom line for us is that there are still a lot of unanswered questions,” said Michael Eastman, executive director of labor policy at the U.S. Chamber of Commerce. “The NLRB has a ton of room to regulate. What parts of employer free speech would he believe should be prohibited?”

McCain continues to have issues with Becker, questioning him about potential conflicts of interest involving the SEIU.

Becker responded that he would comply “scrupulously” with an ethics pledge to recuse himself from SEIU lawsuits for two years.

“That’s not good enough,” McCain said.

Although McCain could place another hold on Becker’s nomination, Harkin is determined to press ahead. He dismissed accusations that Democrats are rushing the nomination.

“That’s nonsense,” he said. “We’ve had this nomination since last July. He’s already been voted out of this committee with two Republican votes.”

If Becker is confirmed, it’s inevitable that the NLRB will be more union friendly under a Democratic board majority.

That doesn’t mean, however, that it can implement aspects of the Employee Free Choice Act on its own, according to Erin Johansson, senior research associate at American Rights at Work. A Democratic NLRB under President Bill Clinton didn’t institute card check.

“If it could have been done, it would have already,” she said.

Mark Schoeff Jr.

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