Sen. John McCain, R-Arizona, criticized Craig Becker, Obama’s choice for one of the Democratic slots on the board, at a Wednesday, October 21, meeting of the Senate Health, Education, Labor and Pensions Committee.

Although the panel approved Becker and two other NLRB nominees, 15-8, McCain said that he would place a “hold” on Becker, denying him and the others a vote by the full Senate.

Echoing objections from business organizations, McCain is wary of several articles that Becker has written on labor relations. McCain asserted that Becker, currently the associate general counsel for the AFL-CIO and the Service Employees International Union, would try to circumvent labor law through NLRB rulings.

“This is probably the most controversial nominee that I’ve seen in a long time,” McCain said. “I will, and others will, put a hold on his nomination.”

The NLRB has been operating for nearly two years with only two members—one Republican and one Democrat. At full strength, it has five. With Obama in the White House, the board will have a Democratic majority.

The tenor of Becker’s articles has the business community worried that the NLRB political pendulum will swing more forcefully—this time toward unions—than it normally does when a new president takes office. The NLRB is an independent agency that governs relations between unions and employers. 

McCain vented his frustration that Becker had not appeared before the committee. The chairman of the panel, Sen. Tom Harkin, D-Iowa, however, said that typically hearings are conducted only for the NLRB chairman.

“The tradition has been for a long time that we do not have hearings on these nominees,” Harkin said. “At this transition point, I want to continue that tradition.”

The committee reins passed from Sen. Edward Kennedy, D-Massachusetts, to Harkin several weeks ago following Kennedy’s death. Sen. Mike Enzi, R-Wyoming and the ranking Republican on the committee, expressed reservations about Becker but voted with Harkin and the panel Democrats to approve all three NLRB nominees.

Harkin downplayed the need for a hearing, pointing out that Becker had answered 282 written questions from Republicans.

But that didn’t satisfy McCain. “There are a lot of questions about his answers to the questions,” he said.

McCain’s move was welcomed by the U.S. Chamber of Commerce. The organization spearheaded an October 20 letter to the Senate Labor Committee opposing Becker’s nomination that also was signed by the Society for Human Resource Management and the HR Policy Association.

“Many of the positions taken in his writings are well outside the mainstream and would disrupt years of established precedent and the delicate balance in current labor law,” the letter states.

A chamber analysis of a 1993 Becker article for the University of Minnesota Law Review says that he “expresses the view that employers should have no role in union organizing campaigns and union representation elections.”

But worries about Becker go beyond his approach to labor law. Steven Law, chief legal officer and general counsel at the chamber, said there are questions about whether Becker played a role in the vote-buying scandal that drove former Illinois Gov. Rod Blagojevich from office.

Law also said that Becker may have drafted Obama administration executive orders on organized labor while working at the SEIU.

“Senator McCain ensures that there will be a more substantive debate on this nominee than he received in the committee,” Law said. “We’ve got an Act II to play out next.”

An SEIU spokesman referred questions about Becker to the Senate labor committee Democratic staff.

Harkin defended Becker, a Yale Law School graduate and former UCLA law professor.  He said that in his answers to committee questions Becker had pledged to “fairly and impartially decide cases based on the relevant facts and established law.”

“I am confident that he will approach his new position objectively and without bias,” Harkin said.

With a bill that would make it easier for workers to form unions stalled in the Senate, many observers say that it is possible for a Democratic-majority NLRB to implement changes that would benefit labor in organizing campaigns.

“They could achieve through decision-making a lot of the facets that the Employee Free Choice Act in its current form proposes,” said John Bowen, a partner at Ford & Harrison in Minneapolis.

But he cautioned that major policy changes made by the board would be ephemeral.

“You’d be flipping back and forth depending on who’s in the White House,” Bowen said.

—Mark Schoeff Jr.

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