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NLRB Nominee May Be Headed for Senate Filibuster

February 4, 2010
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Although a Senate committee approved Harold Craig Becker for a seat on the National Labor Relations Board on Thursday, February 4, the 13-10 party-line vote signals that Republicans may block his controversial nomination with a filibuster this week.

The Republicans’ ability to halt Becker, who has caused concern in the business community with his pro-union stances, is enhanced now that Sen. Scott Brown, R-Massachusetts, has been sworn into office.

The ceremony was advanced to late Thursday afternoon, hours after Brown’s election was certified by Massachusetts officials. He gives the GOP 41 senators, enough to sustain a filibuster.

Originally scheduled for February 11, Brown’s seating was moved up a week to allow him to vote on Becker and other administration nominees opposed by Republicans. A source with a business group in Washington expects Brown to join a filibuster against Becker, who is associate general counsel for the Service Employees International Union.

In a Capitol Hill press conference minutes after he was sworn in, Brown did not take a position on the Becker nomination. He said he was studying the qualifications of pending nominees and was not being pressured by Senate GOP leadership.

"I have not been asked to do anything either way," Brown said.

The Senate will vote on whether to end debate—or stop a filibuster—on the Becker nomination at 5 p.m. ET on Tuesday, February 9.

Another Democratic nominee who drew Republican objections, Patricia Smith, tapped by the Obama administration to be solicitor of the Department of Labor, gained Senate approval, 60-37, hours before Brown was sworn in. The solicitor is the top legal official at the Labor Department.

Republicans asserted that Smith had misled the Senate about the details of a program that she implemented as New York labor commissioner designed to enlist unions and community groups in seeking out pay violations by local companies.

Becker, meanwhile, stokes passionate corporate opposition because of papers he has written in which he asserts that management should have no role in union elections and that the National Labor Relations Board can implement labor-law changes independent of Congress.

In a hearing last week, Becker distanced himself from his articles, saying that he wrote them as a scholar who was attempting to foment debate. Becker has served as a professor at Georgetown University; the University of Chicago; and the University of California, Los Angeles. He said that as an NLRB adjudicator, he would respect the will of Congress and adhere to current labor law.

His opponents fear that once he has joined the five-member board, he and his Democratic colleagues will try to implement aspects of the Employee Free Choice Act by administrative fiat. The bill, which makes it easier for employees to form unions, is stalled in the Senate as backers look for 60 votes to overcome a filibuster.

The NLRB would have a 3-2 Democratic majority if Becker and two other nominees—Democrat Mark Pearce and Republican Brian Hayes—gain Senate confirmation.

The board, which oversees collective bargaining in the private sector and whose majority reflects the presidential administration, has had only two members since January 2008. The Supreme Court will consider this spring whether decisions that have been made by the two-member board are valid.

The three NLRB nominees will be considered by the full Senate as a bloc. Pearce and Hayes have not generated controversy but cannot move forward without Becker.

The Senate labor committee voted in favor of Becker in October, with two Republicans joining the panel’s Democrats. They changed their votes to “no” Thursday, demonstrating Republican unity.

Sen. John McCain, R-Arizona, placed a hold on the nomination last fall, preventing action on the floor and forcing the Obama administration to re-nominate Becker in January. It’s not clear whether McCain will put another hold on Becker.

Sen. Tom Harkin, D-Iowa and chairman of the Senate labor committee, expressed frustration with Republicans trying to block Becker.

“This government cannot function if we, as senators, abuse our power to advise and consent to presidential nominees by using extraordinary procedural tactics to block the nomination of qualified people,” Harkin said.

Sen. Mike Enzi, R-Wyoming, defended the Republican moves. He said Becker’s answers to some 280 written questions from the committee were “vague” and leave open the possibility that Becker would “tilt the playing field unfairly in the direction of labor union leaders.”

Harkin, the chief sponsor of the Employee Free Choice Act, dismissed concerns that the NLRB can bring the bill’s provisions into effect. Among other things, the Employee Free Choice Act as originally envisioned would allow workers to form a union by signing cards rather than through a secret-ballot election.

“I don’t have any illusions that those important changes can somehow be accomplished administratively, and neither does Craig Becker,” Harkin said. “It would take a change in the law.”

Harkin acknowledged that Senate prospects for the Employee Free Choice Act remain cloudy but promised a vote this year.

“It’s not dead,” Harkin told reporters Thursday. “We’re still hoping we can bring something out that can garner 60 votes.”

—Mark Schoeff Jr.

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