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Ergonomics Foe Wins Close Vote for Top DOL Job

More than one month after the Sept. 11 disaster, there is a sign that Congress may be returning to some semblance of normalcy: the ergonomics debate has flared up once more.


More than one month after the Sept. 11 disaster, there is a sign that Congress may be returning to some semblance of normalcy: the ergonomics debate has flared up once more.

A Senate panel approved the nomination of Eugene Scalia to be the Department of Labor''s (DOL) top lawyer, and sent it to the full Senate for consideration.

But the vote of the Senate Committee on Health, Education, Labor, and Pensions was close (11 to 10), debate was heated, and the nominee''s ultimate success on the Senate floor is far from certain.

Scalia, a Washington labor lawyer who is the son of Supreme Court Justice Antonin Scalia, has been nominated to be the Labor Dept.''s solicitor, where he would provide legal advice on enforcement of labor laws - including job safety rules - as well as guidance on rulemaking and other policy issues. It''s the third most powerful job at DOL, according to attorney Stephen Yohay, of Arent, Fox, Kintner, Plotkin & Kahn PLLC.

The AFL-CIO has made defeat of the Scalia nomination one of its top legislative priorities. When the union sent a letter to senators opposing the Scalia nomination last month, it was not signed by an AFL-CIO underling, as is usually the case, but by its president, John Sweeney.

Labor opposition to Scalia began because of the prominent role he played representing business groups in the defeat of OSHA''s ergonomics standard, issued last year but later nullified by Congress.

In his letter, Sweeney argued that the union opposes Scalia not just because of the nominee''s opposition to ergonomics and other worker protections. It is rather the "extreme and radical nature of his opposition that leads us to believe he is an inappropriate choice for the job," according to Sweeney.

The AFL-CIO charges that Scalia has written there is no scientific basis for ergonomics regulation of any kind, but in his confirmation hearing last month the nominee said he thought ergonomic-related injuries did exist but that OSHA''s regulation went too far.

William Ament, a consultant at Organization Resources Counselors who has experience working with Scalia, does not believe his views are extreme, and questioned whether he would be able to affect policy. "I think he would be a fair and forthright solicitor," said Ament. "As the department''s top lawyer he won''t be setting policy, he''ll be interpreting legal issues. I think he can keep the two things separate."

Republicans on the Senate panel, all of whom voted for Scalia, defended his opposition to the ergonomics rule, which, they pointed out, was rejected by a majority in Congress.

All the Democrats on the labor committee voted against Scalia. The deciding vote for Scalia was cast by Vermont independent Sen. James Jeffords, the former Republican whose defection gave Democrats their slim control of the Senate.

Sec. of Labor Elaine Chao urged the Senate to act on the nomination, which has been held up for five months.

But given the opposition to Scalia, quick action on the nomination appears unlikely. A Washington insider said a Democratic senator would place a "hold" on the nomination, which could delay a vote by the full Senate indefinitely.

by James L. Nash

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