That seems to be a question being asked by many people following the Senate consideration of President Obama’s three nominees to the National  Labor Relations Board.  On Wednesday, the Senate H.E.L.P. Committee approved the nominations.  While the nominations of union attorney Mark Gaston Pearce and Republican Senate Committee policy director Brian Hayes were approved unanimously, eight of the twenty-three Senators voted against moving SEIU attorney Craig Becker’s nomination forward.

Immediately following the Committee’s vote, Sen. John McCain (R-AZ) placed a "hold" on Mr. Becker’s nomination.  While editorializing on the Senator’s intent, a piece in the anti-corporate publication In These Times identified some of the concerns being expressed about Mr. Becker thus:

As a legal scholar, Becker helped lay the intellectual foundation for the Employee Free Choice Act.

In one law review article, he suggested that much of the work of EFCA could be done through the existing regulatory structure. The NLRB administers the National Labor Relations Act, the primary legislation that governs labor/management relations.

Of course, the author in this case is clearly sympathetic to this course of action.  (In an interesting concluding note. she also suggests that Sen. Harry Reid (D-NV) might force the confirmation vote over McCain’s hold, and that Democrats would likely prevail on a cloture vote on the confirmations — all perhaps as soon as October 27.)

That Mr. Becker and allies on the Board might implement elements of the Employee Free Choice Act — with or without the bill’s passage by the Legislature — is indeed one issue that has been raised by many critical of his nomination.  Both the U.S. Chamber of Commerce and the National Association of Manufacturers have sent letters to the Senate H.E.L.P. Committee expressing this concern.  Ranking Member of the Committee, Senator Michael Enzi (R-WY) acknowledged as much in his released statement the morning of the votes:

While I support moving the package forward as the Chairman and Ranking Member have done in previous Congresses and Senator Kennedy and I did back in 2006, I do have some serious concerns with Mr. Becker’s writings – particularly the potential for radical changes in labor law he has advocated, and argued can be implemented, without Congressional authorization.

Likewise, Committee Chair Sen. Tom Harkin (D-IA), who has resisted calls for a confirmation hearing on Mr. Becker’s nomination, addressed the issue:

"As an academic Mr. Becker has written extensively on a variety of legal topics. He has taken a critical approach to existing law and pushed the boundaries of convention in his field. It’s clear, however, that he understands and respects the distinction between being an intellectual advocate and serving as an adjudicator on the Board. He is fully aware that as a member of the Board his role will be – and I quote from his responses to the Committee’s questions here: – to ‘implement Congress’s intent as expressed in the law, to fairly consider all views … to deliberate with my fellow Board members, to utilize the wealth of knowledge and experience possessed by the Board’s career staff, and to fairly and impartially decide cases based on the relevant facts and applicable law.’

We will continue to follow these developments and report on them here.