Labor Secretary Elaine L. Chao won't show her hand until September about whether she will propose a new rule on repetitive-motion injuries in the workplace, but one of her chief lieutenants-to-be has played his card publicly about the hot-button issue.
As Eugene Scalia, a labor lawyer at Gibson, Dunn & Crutcher, awaits a confirmation hearing by the Senate on his nomination to be solicitor at Labor -- the top legal perch in the department -- his views precede him. His opinions have raised concern with labor officials who have been watching the nomination warily.
In the Wall Street Journal in January 2000, he wrote that the then-proposed ergonomics rule was "a major concession to union leaders, who know that ergonomic regulation will force companies to give more rest periods, slow the pace of work, and then hire more workers (read: dues-paying members)."
In a Cato Institute article in May of last year, he wrote: "One need not wade into the debate between ergonomists and their critics to appreciate the inappropriateness of the ergonomic regulation -- one need only examine OSHA's dreadful performance in the ergonomics cases it litigated to judgment."
And in another Cato piece last June, he wrote: "OSHA wants to entrench the questionable science of ergonomics in a permanent rule. But no agency should be permitted to impose on the entire American economy a costly rule premised on a 'science' so mysterious that the agency itself cannot fathom it."
At the time, the 37-year-old Scalia, son of Supreme Court Justice Antonin Scalia, represented the most strident opponents of a federal ergonomics rule -- the National Coalition on Ergonomics, United Parcel Service Inc. and Anheuser-Busch Cos. He also participated in efforts to block ergonomics standards in California and Washington state.
Scalia declined to be interviewed, citing his pending nomination.
Eric Frumin, health and safety director for the Union of Needletrades, Industrial and Textile Employees, calls Scalia an "extremist." He said Scalia has "a 10-year history of trying to deny the obvious reality that ergonomic hazards injure millions of American workers."
Peg Seminario, safety and health director for the AFL-CIO, said: "We haven't taken a final position. But we are quite concerned based on what we know about him."
Bush administration sources said his views on ergonomics became mainstream when a majority of the Congress voted to kill the Clinton administration's ergonomics rule.
Supporters say Scalia was a forceful advocate for his clients in opposing an ergonomics rule. But William Kilberg, who was Labor solicitor under presidents Richard M. Nixon and Gerald R. Ford and a Scalia mentor at Gibson, Dunn & Crutcher, said: "There's no reason to believe that Eugene Scalia would do anything but carry out the law . . . or wouldn't be fully committed to carry out the mission of the Labor Department to further the interest of working men and women."
As solicitor, Scalia would have jurisdiction over a wide range of legal and regulatory issues, ranging from mine safety and job training, to migrant workers and pension rights.
Kilberg said Scalia's writings on sexual harassment and labor unions show that he is neither liberal nor conservative. "People who think he's ideological are off base," he said. "He's not a wing nut. If you read what he's written, it's thoughtful and you can't put it in ideological terms."
For example, he has written that the federal government should give more recognition to labor unions, even to the point of letting them take over some regulatory responsibilities.
Baruch Fellner, another colleague at Gibson, Dunn & Crutcher on the ergonomics cases, said of Scalia: "His intellect is incandescent. The Department of Labor is so damned lucky to have a person of his ability at the helm of their legal department."
J. Davitt McAteer, Labor solicitor during part of the Clinton administration, said the job requires upholding laws and rules that Scalia has expressed opposition to. "It will be a real challenge not to have his strongly held ideology interfere with his obligations as chief law enforcement officer at Labor," he said. "It's not to say it can't be done, but it will be harder to carry out."
The Senate Committee on Health, Education, Labor and Pensions is expected to hold a hearing on the nomination in July. The committee is now headed by Sen. Edward M. Kennedy (D-Mass.), who supported the Clinton ergonomics rule.
If Scalia is confirmed, he will be the third top-level appointee at Labor with ties to Antonin Scalia. D. Cameron Findlay, the new deputy secretary, and Howard Radzely, the new deputy solicitor, were both law clerks for the Supreme Court justice.
As solicitor, Scalia would not argue cases before his father -- the Justice Department does that. But he would have influence on cases, and his name may appear on legal briefs at the high court. He has never argued a case before the court and his firm kept any income from Supreme Court cases segregated so it didn't figure into Scalia's pay, law partners said.