Business, labor bring fight to NLRB

The nomination of a labor attorney to a federal board has become another front in the fight over legislation that would make it easier for workers to form unions. 

The business community, which has spent millions of dollars to lobby against the Employee Free Choice Act (EFCA), is now turning its attention to the nomination of Craig Becker, an associate general counsel to both the Service Employees International Union and AFL-CIO, to the National Labor Relations Board (NLRB).

The Employee Free Choice Act, also known as “card-check,” has stalled in the Senate. But business groups worry that Becker would try to institute parts of EFCA through board rulings.

The U.S. Chamber of Commerce, National Association of Manufacturers (NAM), National Federation of Independent Business and other business groups sent a letter Tuesday to members of the Senate Health, Education, Labor and Pensions (HELP) Committee expressing their opposition to Becker.

On Wednesday, Sen. Tom Harkin (D-Iowa), chairman of the Senate HELP Committee, is expected to hold a vote to clear Becker’s nomination and move it to the Senate floor.

Business groups originally were calling for a public hearing on Becker before a committee vote. They now oppose the nomination outright.

Much of the lobbying against Becker has focused on his writings in law journals regarding union elections.

“Since the NLRB is charged with administering our nation’s labor laws, the confirmation of Mr. Becker raises the possibility of the EFCA legislation or an equally onerous alternative being imposed through Board action,” wrote Jay Timmons, executive vice president for the NAM, in a separate letter sent to Harkin on Tuesday.

Steven Law, general counsel and chief legal officer for the U.S. Chamber of Commerce, said his group had a similar concern. The bill and the make-up of the labor board were “related issues,” Law said.

“There are some aspects of the Employee Free Choice Act that can only be achieved legislatively,” Law said. “The concern is the NLRB sets the rules of the game for organizing.”

If passed, EFCA would reform union organizing. The bill would remove the right of management to request a secret-ballot election if workers sign petition cards stating their intention to organize into unions. The bill would also increase penalties for labor law violations and speed up union contract negotiations.

The NLRB, created in 1935 by the National Labor Relations Act, oversees union elections and adjudicates charges of unfair labor practices.

As card-check has stalled in Congress, business groups’ attention has increasingly turned to the administration, which has taken more action on labor’s priorities, according to Richard Hankins, the head of McKenna Long & Aldridge’s labor and employment practice.

“The shift in labor policy toward labor’s agenda is in these other areas right now,” said Hankins, who has represented employers before the NLRB.

Trade associations have come out against suggested revisions for union voting procedures by the National Mediation Board, for example. Also, they have complained about an executive order signed by President Barack Obama that seemingly favors unionized companies in federal contracts.

Like business groups, Senate Republicans on the HELP Committee have criticized Becker, much more than the Democrats’ other NLRB nominee, Mark Pearce, a Buffalo, N.Y., lawyer who practices labor law. Since their nomination by Obama in April, Becker has received close to 300 questions from GOP panel members, much more than the roughly 30 sent to Pearce, according to committee aides.

It is highly unusual for an NLRB nominee to receive a public hearing. The last such hearing was in 1993, according to one committee aide.
Hankins said board nominees are typically packaged together for Senate approval and win confirmation after closed-door negotiations between lawmakers.

“It is rare to have public hearings because of those dynamics and the opportunity to make a political deal,” Hankins said.

Despite the scrutiny by industry, Becker is likely to pass the committee and move on for a Senate floor vote. The union lawyer has the backing of Harkin.

“Craig Becker is one of the pre-eminent labor law thinkers in the United States,” said Kate Cyrul, a spokeswoman for Harkin. “Chairman Harkin believes that with this extensive experience, Craig Becker would be an asset to the National Labor Relations Board.”

Nonetheless, business groups will continue their opposition to Becker once his confirmation vote comes to the Senate floor.
Law, of the Chamber, said the nominee’s labor history and views on union organizing “deserve not to be swept under the rug.”

“If the committee does decide to act on the nomination without a full public hearing, we will do everything to make sure his views are known,” Law said.