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Key Moves on President Obama's Labor Nominees

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February 5, 2010

On February 4, 2010, the U.S. Senate made two significant moves with the confirmation of the solicitor for the U.S. Department of Labor (DOL) and the Health, Education, Labor and Pensions Committee’s nomination of Craig Becker to the National Labor Relations Board (NLRB).  Through these actions, the Democratic Party appears to be taking steps that could ultimately give organized labor much of what it seeks in the Employee Free Choice Act, while sidestepping debate over the controversial legislation.

The Senate voted along straight party lines, 60-37, to confirm President Obama’s nomination of Patricia Smith to serve as the solicitor for the DOL. 

Smith previously served as New York’s state labor commissioner and oversaw its Labor Department.  Smith also worked in the Labor Bureau of the New York State Attorney General’s Office where she represented the Labor Department in state and federal litigation.  The Senate vote followed strong Republican opposition to Smith’s nomination, including claims that she misled the Senate Health, Education, Labor and Pensions Committee during her May confirmation hearing.  Senator Mike Enzi (R-Wyo.) initially opposed Smith’s nomination and renewed his objections this week, telling senators that she made “significant inconsistencies” to the committee regarding a wage and hour program she developed in New York, and that her interests too closely align with those of organized labor.   

The Senate Health, Education, Labor and Pensions Committee also approved—again, along a straight party-line vote of 13-10—the nomination of union attorney Craig Becker to the NLRB. 

This is the second time Becker’s nomination has been considered.  In October 2009, the Committee initially approved Becker’s nomination, along with those of union attorney Mark G. Pearce and management representative Brian E. Hayes.  However, Senator John McCain (R-Ariz.) placed a hold on the nomination, causing the Senate to send the nomination back to the White House at the end of the 2009 session.  President Obama re-nominated Becker in January 2010.

The Senate committee granted McCain’s request for a hearing on Becker’s nomination, and the committee met February 2, 2010, to question Becker about his views on labor issues.  Becker has worked as an associate general counsel for the SEIU since 1990, staff counsel for the AFL-CIO since 2004, and has taught and written articles about labor law.  Management groups have strongly opposed his nomination, raising concerns that he would circumvent Congress by implementing portions of the proposed Employee Free Choice Act through NLRB decisions, and citing Becker’s views that employers should be excluded from NLRB representation election process. 

Becker’s nomination faces an uphill battle.  Senator-elect Scott Brown of Massachusetts was sworn in yesterday, a week earlier than planned, and with his early arrival, Republicans have enough votes to successfully filibuster Becker’s nomination in the full Senate.  There are indications, however, that the White House could still place Becker on the NLRB without Senate approval through a recess appointment. 

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