Hunton Employment & Labor Perspectives

In response to President Obama’s re-nomination of Craig Becker to the National Labor Relations Board, all forty-seven Republicans in the U.S. Senate submitted a letter to Mr. Obama on February 1 urging him to withdraw Becker’s nomination.  Becker’s July 2009 nomination to the Board failed in the Senate in the spring of 2010, but the President gave Becker a controversial recess appointment that allows him to serve from his swearing-in on April 5, 2010 until the end of the Senate’s 2011 session, despite the Senate’s rejection of his nomination.  President Obama’s re-nomination of Becker, if successful, would allow Becker to serve until December 16, 2014.

Becker, former associate general counsel for the SEIU and the AFL-CIO, two of the largest unions in the U.S., drew a flood of criticism for his labor ties when President Obama first nominated him.  In their February 1 letter, the Senators express their disappointment in Mr. Obama’s recess appointment of Becker and explain that during his ten month tenure, Becker has not alleviated their concerns about his record of supporting an expanded role for the Board without Congressional authorization and his numerous conflicts of interest.

The Senators allege that the Board has adopted a clearly pro-union stance since Becker’s recess appointment, and that Becker has led the Board to “re-open and reverse settled decisions.”  The Senators also point out that under Becker’s leadership, the Board has threatened four states (Arizona, South Carolina, South Dakota and Utah) with lawsuits over constitutional provisions protecting secret ballot union elections that were adopted by the voters of those states, but has ignored provisions in other states that conflict with federal law but benefit unions over employers.

The Senators also express their dismay that, although Becker promised during his confirmation hearing to recuse himself for at least two years from any Board matter in which his previous union employers were a party, he has refused to recuse himself in twelve of thirteen such cases over the past ten months.  The Senators opined that the Board’s actions under Becker’s leadership will ensure conflict with Congress, entangle the Board in legal challenges for many years, and result in an even more polarized and unworkable Board.  The Senators conclude their letter by expressing their willingness to work with President Obama to identify a replacement nominee.

The Board currently has a 3-1 Democratic majority, which includes Becker, but on January 5, President Obama nominated Board lawyer Terence Flynn (R) to fill the fifth spot on the Board.  According to Mike Enzi (R-Wyo.), Senate Republicans are not planning to back down from their opposition to Becker, and with forty-seven seats in the Senate, they have the votes to filibuster his confirmation vote.  Stay tuned for what is likely to be an interesting showdown.