On Tuesday, February 2, 2010, the Senate Health, Education, Labor and Pensions (”HELP”) Committee held a hearing concerning the nomination by President Obama of Service Employees International Union (”SEIU”) associate general counsel Craig Becker to the National Labor Relations Board.

In 2009, Sen. John McCain (R-AZ) placed a “hold” on Becker’s nomination and requested a hearing, effectively derailing Becker’s nomination. After the Senate returned the Becker nomination when it adjourned in December, President Obama renominated Becker on January 20, 2010.

Becker was the only witness at the hearing. Sen. Harkin has scheduled a February 4 meeting, at which time the committee is expected to vote on Becker’s nomination. If Becker is approved again by the HELP Committee, Democrats are expected to try to bring the NLRB nominations to the floor for a full Senate within the next few weeks.

Sen. Harkin commenced Tuesday’s hearing by stating that “we are here today to take the rather unusual step of holding a hearing on a nominee for the National Labor Relations Board.”  Harkin explained that, although “it has not been the standard practice of this committee to hold hearings on NLRB nominations,” and in fact the last time the Committee held such a hearing was in 1993 on the nomination of the Chair of the Board, “my colleagues on the other side of the aisle have requested a hearing. And while I am reluctant to further prolong the consideration of an obviously well-qualified nominee, I was willing to bend over backwards to accommodate that request because I think the work of the NLRB is tremendously important and deserves this committee’s attention.” 

Harkin called Becker “one of the preeminent labor law thinkers in the United States” and added that “I can say with great confidence, he will be an invaluable addition to the NLRB.”  He remarked that much of the concern about Becker’s nomination seems to be focused on academic articles he has authored.  On this point, Harkin stated that “he has taken a critical approach to existing law … but that’s what academics are supposed to do - to contribute to the marketplace of ideas.” Harkin also pointed out that the Committee has confirmed members with both union and management backgrounds in the past “without any great cause for concern.”

Sen. Johnny Isakson (R-GA), standing in for Ranking Member Michael Enzi (R-WY), asked that two letters received by the Committee on Monday, both in opposition to Becker’s nomination, be included in the record. One letter was from 23 major trade associations, and the other was from an organization representing 600 manufacturers. 

Referring to the controversial Employee Free Choice Act (”EFCA”) currently before Congress, which would allow a union to become certified without a secret ballot election, Sen. Isakson observed that “some have expressed concerns that Mr. Becker’s past writings have indicated a belief that the NLRB has the authority to make some of the dramatic changes included in the card check bill without congressional action.”  Isakson stated that he asked Becker in a private meeting if, as a member of the NLRB, he would attempt to certify a union without a secret ballot election, and that Becker had answered no, the Board can only certify results of Board-conducted elections.

Sen. Isakson then addressed the concern that Becker “has advocated new body of campaign rules that would severely limit the ability of employers to voice their opinion on unionization,” including rules on captive audiences and union access to private employer property.  Again, Isakson stated that, in a private meeting, Becker “has assured me that these comments…were scholarly writings made as a scholar seeking to further meaningful and wide-ranging analysis of the law” and that these statements “will not control his judgment if he is confirmed as a member of the NLRB.”

On the same subject, Sen. Harkin asked Becker to address the concern of some critics that he would attempt to implement the “card check” process proposed in the EFCA administratively. Specifically, he asked Becker to explain how the National Labor Relations Act would constrain the Board’s ability to do so.  Becker replied that the Act “clearly precludes certification in the absence of a secret ballot election.”

Sen. Isakson asked, “Do you favor the NLRB limiting employers’ involvement in the election process?” Becker replied that current law clearly provides employers the right to free speech, citing the National Labor Relations Act and the First Amendment. He emphasized that employers have legitimate First Amendment rights, including the “indisputable right to express views on whether employees should unionize.”

Sen. McCain (R-AZ) asked Becker if he provided advice to ACORN for his current employer, and Becker replied that he had never done so. McCain then asked if Becker discussed labor law or efforts to organize home care workers with former Illinois governor Blagojevich.  Becker responded that he represented SEIU locals in Illinois, which had been working for a long period of time to organize home care workers. He stated that he had discussions with staff of former governor Blagojevich, and, on one occasion, with the former governor himself, on some technicalities related to the drafting of legislation that extended collective bargaining to those workers.

McCain’s most heated questions related to Becker’s intent to recuse himself from any Board matters involving the SEIU, his current employer. Sen. McCain asked Becker, “How many cases involving SEIU will you have to recuse yourself from?” Becker replied that the number is uncertain, but noted that the SEIU itself is rarely a party to Board proceedings.  He stated that he takes his ethical obligations very seriously, and that concerns about his ability to be impartial led to his execution of an ethics agreement, which details the circumstances under which he would recuse myself.  Under the terms of this ethics agreement, Becker pledged that he would recuse himself from any matter on which SEIU is a party for two years. In response to McCain’s questions, Becker promised that “I will comply with the terms of that pledge scrupulously,” to which McCain responded, “That’s not good enough.”

Becker received somewhat friendlier treatment from Sen. Robert Casey (D-PA), who remarked that “we don’t confirm judges that are robots…we confirm people that are human beings, that have a point of view and know how to argue and battle and be advocates.” Casey stated that “we want people who understand what it’s like to advocate for a position, but that doesn’t mean that you can’t exercise a kind of objectivity.”

At the close of the hearing, Sen. Harkin adjourned the Committee until Thursday morning at 10:00 a.m. He announced that any additional questions from members must be submitted before 10:00 a.m tomorrow morning, so that Becker may have time to reply before Thursday.