Hunton Employment & Labor Perspectives

On December 24, Craig Becker’s nomination to the NLRB ran into a significant obstacle when the Senate returned the nomination to the White House for reconsideration.

Becker, who works for the Service Employees International Union, was nominated by the President earlier this year to fill one of the two vacant Democratic seats on the NLRB.  There has been significant controversy surrounding his nomination due to what critics describe as his extreme, some say radical, pro-union views concerning possible changes to the nation’s labor laws.  The nominations of Democrat Mark Pierce and Republican Robert Hayes were both held over by the Senate for consideration during the next term, indicating that both are likely to be confirmed.  

Becker’s nomination was returned by the Senate in accordance with its operating rules because at least one Senator objected to having the nomination held over for consideration during the 2010 session.  Earlier this year Senator McCain (R, Ariz.) expressed his opposition to Becker’s nomination, referring to the nomination as one of the most controversial that he had seen in a long time and placing a hold on the nomination after his request for a public hearing was denied.

Whether Becker’s nomination will survive is unclear.  Because it has been returned, the President must resubmit the nomination in order for the Senate to consider Mr. Becker.  If he is re-nominated, the process could coincide with debate over the Employee Free Choice Act (EFCA), bringing into stark focus some of the most controversial aspects of organized labor’s agenda. 

This scenario may also create room for compromise, or at least the illusion of one.  To get EFCA passed and push Becker through to confirmation, proponents might be willing to modify the provision that would eliminate the right to call for a secret ballot union election.  However, with Becker on the NLRB, pro-union rules and decisions are more likely to predominate.  Among Mr. Becker’s most controversial views are:  (a) that employers should play no role whatsoever in the union selection process; and (b) that many of the NLRB’s current rules regarding the union selection process can be changed by rulemaking without legislation.

A compromise which defeats EFCA in its current form but allows Mr. Becker to be confirmed could, in the eyes of employers opposing EFCA’s passage, turn out to be a pyrrhic victory.