Groups want to know about NLRB, OSHA nominees' legal views

Chris Rizo Oct. 17, 2009, 10:53pm

Tom Harkin (D)

WASHINGTON (Legal Newsline)-A U.S. Senate panel this week will consider a handful of presidential nominees for key posts, possibly without probing their positions on important legal issues.

The Senate Health, Education, Labor, and Pensions Committee has scheduled a hearing Wednesday to consider the nominations of Craig Becker, Mark Pearce and Brian Hayes to the National Labor Relations Board, and David Michaels to be assistant secretary of labor for occupational, safety and health.

Industry groups in a letter to the committee voiced concern that none of the nominees by President Barack Obama is scheduled to have a Senate confirmation hearing to explain their views of the job.

In a letter to the committee dated Thursday, a group of trade organizations urged committee Chairman Tom Harkin, D-Iowa, to hold a hearing on Becker's nomination to serve as a member of the National Labor Relations Board.

"Mr. Becker has written prolifically about the National Labor Relations Act (NLRA), the law he would be charged with interpreting and enforcing should he be confirmed," the letter said. "Many of the positions taken in his writings are well outside the mainstream and would disrupt years of established precedent and the delicate balance in current labor law."

The letter signed by the National Association of Manufacturers, the National Retail Federation, and Associated Builders and Contractors, among 25 other groups, said industry is concerned about how, if a member of the NLRB, Becker would interpret employers' free speech rights.

The Wall Street Journal on Thursday editorialized against Becker's nomination, noting the ties between the Service Employees International Union, where he has been associate general counsel and the social activist group ACORN.

"President Obama nominated Mr. Becker in April to the five-member NLRB, which has the critical job of supervising union elections, investigating labor practices, and interpreting the National Labor Relations Act. In a 1993 Minnesota Law Review article, written when he was a UCLA professor, Mr. Becker argued for rewriting current union-election rules in favor of labor. And he suggested the NLRB could do this by regulatory fiat, without a vote of Congress," the newspaper wrote.

As for Michaels, the National Association of Manufacturers decried the George Washington University professor's position that requiring scientific evidence to meet certain standards in lawsuits creates a "social imbalance."

Michaels, an epidemiologist, outlined his position in his book, Doubt is Their Product.

"Dr. Michaels has advocated an approach to developing workplace regulations that would allow unproven and insufficient scientific evidence to be used as the basis for regulatory actions and has criticized efforts to ensure that regulations are based on the best available science and data," NAM said in a letter to senators. "It is concerning that Dr. Michaels has rebuked widely accepted legal precedent that allows scientific certainty of evidence to be reviewed."

Critics say Michaels, if confirmed to lead OSHA, would work to overturn the 1993 Supreme Court case Daubert v. Merell Dow Pharmaceuticals Inc., in which the high court ruled that trial judges could hold hearings -- without juries present -- to determine whether expert testimony is relevant to a case.

"Michaels is closely associated with trial lawyers, so they're going to try to overturn this," Steven Milloy, founder of was quoted by Fox News as saying. "That's his mission. Our concern is that he's going to take this mission and somehow implement it at OSHA."

"Trial lawyers would love him," Milloy added. "He has a junk science agenda. The standards of science (at OSHA) under Michaels will be extremely low. If nothing else, he will promulgate junk science-based workplace regulation."

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