Obama nominee's fate in flux as labor lawyer loses GOP support

Two Senate Republicans who previously supported a controversial labor board nominee opposed him on Thursday, putting his confirmation in doubt.

Sens. Mike Enzi (Wyo.) and Lisa Murkowski (Alaska) backed Craig Becker’s nomination to the National Labor Relations Board during his approval vote at the Senate Health, Education, Labor and Pensions (HELP) Committee last fall. But his nomination stalled under heavy lobbying by business groups. Becker had to be re-nominated by President Barack Obama this year, and the nominee lost Enzi's and Murkowski’s support in a party-line vote taken by the committee Thursday. 

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The HELP panel advanced Becker's nomination on a 13-10 vote. But Democrats are about to lose their filibuster-proof majority with the arrival of Scott Brown, the newly elected Massachusetts Republican who is being sworn in to the Senate later on Thursday. That leaves Becker's fate in flux.

Becker, an associate general counsel to both the Service Employees International Union (SEIU) and the AFL-CIO, is viewed by business trade groups as someone who could institute parts of the Employee Free Choice Act (EFCA) through executive action if confirmed. The bill is favored by unions but opposed by the business community.
 
Business groups played a key role in stalling Becker's nomination last fall and revved up their opposition last month when Obama pushed to restart the confirmation process.
 
The trade groups are concerned that a pro-union labor board with Becker in place could rule that existing labor law allows employees to form a union by signing authorization cards, rather than through a secret ballot. That interpretation would allow the Obama administration to put in place the most contentious provision in the card-check legislation without a vote in Congress.

Union lawyers have dismissed that legal theory, arguing any statutory changes cannot be put in place by the board and require action by Congress. Sen. Tom Harkin (D-Iowa), the HELP Committee chairman, also disputes that theory.

“He has clearly and consistently explained, on numerous occasions, that all three major reforms proposed in EFCA — card-check, binding arbitration for first contracts, and treble backpay for illegally fired workers — cannot be accomplished without a change in the statute. And as we all know, statutes can only be amended by those of us elected to Congress, not executive branch appointees,” Harkin said.

Harkin, calling Becker “one of the preeminent labor lawyers in the country,” said the nominee has faced more questions than Sonia Sotomayor during her Supreme Court confirmation process. He wondered if the Republicans were just instituting delay tactics to stop his confirmation.

But concerns remained among Republicans even after a Tuesday confirmation hearing for Becker. They were troubled by what they considered ambiguous answers from Becker and whether he could fully recuse himself from his labor ties.

“Mr. Becker’s answers to written questions that senators submitted previously on these views are vague, and sometimes non-responsive due to his attorney relationship with both SEIU and the AFL-CIO,” Enzi, the panel’s ranking member, said in a statement. “This has left open the real possibility that Mr. Becker would reinterpret the National Labor Relations Act to limit the ability of employers to participate in the process, or tilt the playing field unfairly in the direction of labor union leaders.”

A spokesman for Enzi said it was unclear whether Republicans would follow through with a filibuster of Becker’s nomination, though opposition to him remains strong among party members.

“Sen. Enzi has urged colleagues to oppose Mr. Becker’s nomination. Additional efforts to block this nomination have not been discussed,” said Craig Orfield, Enzi’s spokesman.