Hunton Employment & Labor Perspectives

National Labor Relations Board (NLRB) Nominee Craig Becker needed 60 Senate votes to overcome the Republican-led filibuster blocking his confirmation, but he only received 52 votes on Tuesday. Two Democrats, Sen. Blanche Lincoln (Ark.) and Ben Nelson (Neb.), went against their party to vote him down in the cloture vote, which failed 52-33.

Becker could still be appointed to the NLRB if the President makes a recess appointment. Currently, the Board has only two of its five seats filled, and requires a third to meet the quorum requirement.  However, given the controversy surrounding the Becker nomination, it would be a bold move for the President to fill the quorum by giving Becker the seat.  Two other current nominees, Mark Gaston Pearce (D.) and Brian Hayes (R.) are less controversial than Becker and their nominations are also before the Senate for consideration. The controversy surrounding the Becker nomination is due principally to Becker’s background, which many believe displays an anti-free-market and pro-union bent.  Becker is a labor lawyer who has served as associate general counsel to the Service Employees International Union (SEIU) and the AFL-CIO.  For the past 27 years, Becker has taught and practiced labor law and written articles expressing extremely pro-union, anti-business views.

It appears that the Senate can confirm both Pearce and Hayes at any time. However, should  the Senate attempt  to confirm Pearce (the Democrat) without Hayes (the Republican), it is predicted that Senate Republicans will object or resist.
  
As for a recess appointment, it is unclear whether there will be a recess next week, given the blizzards this week that have resulted in snow days in Washington, D.C.  If the Senate takes off three (3) days or more next week, as originally planned, the President will have the opportunity to use his recess appointment power.  If so, the President could appoint Becker, Pearce, or Hayes, or any combination, including all three nominees to the NLRB.  If any of them receives the recess appointment, the appointment must be approved by the Senate by the end of the next session (which in current practice would likely be some time in December of 2011, although it is not certain), or the position becomes vacant again.
 
It is not clear why Senate Majority Leader Reid pushed the cloture vote when he knew last week that it would fail after Senators Enzi (R. Wyo.) and Murkowski (R. Alaska) of the Senate Health, Education, Labor, and Pensions Committee changed their votes to oppose Becker’s nomination. However, after the cloture vote, labor organizations are now more informed about who it should support, with Senators Lincoln and Nelson likely no longer on its list of supportive candidates.