On Oct. 21, the Senate Committee on Heath, Education, Labor and Pensions (known as the HELP Committee) approved President Obama’s three nominees for the National Labor Relations Board (NLRB), which supervises union elections, investigates labor practices and interprets the National Labor Relations Act. The committee’s approval is the first step toward a confirmation vote by the full Senate, which is required before the nominees can take their positions on the board.
For the last two years, the board has operated with only two of its five members. Recent lawsuits challenging the board’s authority to issue decisions with just two members has highlighted the need to fill the vacancies. However, the path to confirmation may be rough. One of the president’s nominees, former Service Employees International Union (SEIU) and AFL-CIO Associate General Counsel Craig Becker, faces strong opposition from several senators and business groups, including Associated Builders and Contractors (ABC).
Concerns with Becker began to surface shortly after his April 24 nomination. Becker, a pro-union labor lawyer, has written extensively about federal labor law. Most of the objections to Becker stem from a law review article he wrote in 1993 that stated the board should strip employers “of any cognizable interest in their employees’ election of representatives,” including employers’ right to file objections to union misconduct or challenge the makeup of a proposed bargaining unit.
Becker also states in the article that the board should prevent employers from observing polls at workplace elections. Currently, employers and the union are allowed an equal number of observers at the polls—but under Becker’s suggestion, only union observers would be allowed. In other parts of the article, Becker advocates for measures that would curb employer communication with employees about unions, as well move elections away from the worksite—a change that would almost assuredly reduce voter turnout.
The day before the Senate HELP Committee voted on Becker, several associations, including ABC, sent a letter urging members of the committee to oppose Becker’s confirmation until a public hearing could be held on the issues raised in Becker’s article. Specifically, the letter pointed out that many of Becker’s positions are well outside the mainstream and would disrupt years of established precedent and the delicate balance in current labor law. These positions have raised significant concerns in the employer community (i.e., the extent to which he would restrictively interpret employers’ free speech rights).
The public deserves an opportunity to hear from Becker directly as to whether he still believes in the positions espoused in his writings or if his views on these issues have changed over time. A hearing also would provide an opportunity to learn to what extent Becker will seek to apply these views in his role on the NLRB.
Nevertheless, it appears the committee does not intend to hold a hearing to fully vet these important concerns. But, several senators took to heart the concerns expressed in the letter. During the committee vote, Sen. John McCain (R-Ariz.) said he would attempt to block Becker’s nomination if the committee did not hold a hearing. McCain also demanded a roll-call vote on Becker, whose nomination passed 15-8. The other two nominees, Republican Senate staffer Bryan Hayes and union attorney Mark Pearce, were accepted by voice vote.
Sen. Orrin Hatch (R-Utah) also objected to Becker’s confirmation, stating that Becker “has very disturbing and controversial written views regarding national labor policy … which he has described as being able to bypass Congress.”
Senate HELP Committee Chairman Tom Harkin (D-Iowa) refused to hold a hearing on Becker, claiming that hearings for NLRB nominees are rare and that Becker had been sufficiently vetted. Harkin also promised to hold up the confirmation of both Hayes and Pearce if McCain or others block Becker from confirmation. It remains unclear how long this face off will continue or when a full Senate vote will be held.
In the meantime, the board continues to face lawsuits challenging its authority to issue decisions with only two members. Three federal courts of appeal have said it may do so, while another has said it may not. A petition has been filed urging the Supreme Court to resolve the issue and the dissension among the courts.
It is expected that Big Labor and its allies on Capitol Hill will cite the current opposition to Becker as unfair and damaging to the board. The longstanding board vacancies, however, were initially caused by Senate Democratic leaders, who refused to hold a vote on the nominations President Bush submitted for confirmation in January 2008.