Hunton Employment & Labor Perspectives

On Tuesday, February 4th, the United States Senate Health, Education, Labor, and Pensions (“HELP”) Committee called a rare hearing to question Craig Becker, President Barack Obama’s nominee for the National Labor Relations Board (“NLRB”). While Becker was approved by the HELP Committee last year in a 15-8 vote, Arizona Senator John McCain (R.) placed a hold on his nomination, keeping a Senate vote from taking place. Therefore, the White House resubmitted his nomination and the Committee voted on Becker again yesterday, before a confirmation vote in the full Senate.

Although the Committee approved his nomination again, it did so with a 13-10 party line vote. The confirmation vote could take place as early as next week.

Anticipating another hold would be placed on Becker’s nomination,  proponents were pushing hard for a cloture vote before Massachusetts Senator-elect Scott Brown took his seat. However, Brown was sworn in by Vice President Biden shortly after 5 p.m. ET yesterday, ending the Democrats' supermajority and becoming the Republican's "41st vote" on health care.  Late yesterday, a cloture vote petition with seventeen (17) signatures was filed on Becker, and the vote will take place Monday evening. With Brown seated, Becker’s proponents are unlikely to obtain the 60 votes need to override any hold placed on the nomination.

The controversy surrounding the nomination is due principally to Becker’s background, which many believe displays an anti-free-market and pro-union bent. Becker is a labor lawyer who has served as associate general counsel to the Service Employees International Union (SEIU) and the AFL-CIO.  For the past 27 years, Becker has taught and practiced labor law and written articles expressing extremely pro-union, anti-business views.

The Senate HELP Committee received a letter from 23 major trade organizations last week expressing concern that the NLRB would be able to “radically interpret existing labor law should Becker be confirmed.” The Committee received a separate letter from 600 manufacturing employers urging members to oppose the confirmation.

Senator Johnny Isakson (R., Ga.) expressed concern that Becker's writings "have indicated a belief that the NLRB has the power to make some of the dramatic changes in the card-check bill." This legislation would permit unions to bypass secret-ballot elections and instead organize in workplaces by collecting signed cards from workers.

In an attempt to distance himself from his writings, during Tuesday’s hearing, Becker suggested that he doesn't believe the Board could take such a step. "The law is clear that the decision...(of) an alternative route to certification rests with Congress and not the board," Becker said, adding that his writings were "intended to be provocative and to ask fundamental questions in order for scholars and others to re-evaluate."

In a Huffington Post article posted Thursday, February 4, Stewart Acuff, Chief of Staff and Assistant to the President of the Utility Workers Union of America, illustrates these concerns as he states:

The Employee Free Choice Act has the support of a majority of the US Senate. But under the current rules in the Senate you need not a majority -- 50 votes-- but a super-majority of 60 votes to move legislation to where a vote to pass it can even take place. We are very close to the 60 votes we need. If we aren't able to pass the Employee Free Choice Act, we will work with President Obama and Vice President Biden and their appointees to the National Labor Relations Board to change the rules governing forming a union through administrative action… 

(emphasis added). 

At Tuesday’s hearing, Senator McCain grilled Becker over whether he would recuse himself from cases before the NLRB involving the SEIU, where Becker most recently worked. Becker said he would recuse himself from cases involving the SEIU for two years; however, he would not commit to doing so in a case mentioned by McCain involving a local chapter of the union.