Craig Becker’s NLRB nomination may not have been thrown under the bus, but it certainly seems to have been thrown off of it.
Just prior to adjournment on December 24, the Senate unanimously refused to carry over Mr. Becker’s nomination for consideration in the next Session of Congress. It was returned to the President. As a result of the adjournment and a Senate standing rule, Mr. Becker’s nomination is ended unless the President resubmits it to the Senate in the next Session, beginning in January.
That the Senate excluded Becker’s nomination from a general agreement to carry forward most pending nominations at the NLRB and other agencies — those of fellow Board nominees Mark Pearce and Brian Hayes are among the nominations postponed — appears to send a message to the White House that the Senate is in no mood for a fight over the controversial candidate. Whether anyone at the White House is listening is another story.
Following the Becker nomination’s approval in October by a Senate Committee vote, generally split along party lines, Senator John McCain (R-AZ) put a “hold” on the nomination. The move would have required a supermajority of 60 votes for Mr. Becker when his nomination came before the full Senate for a vote.
The same reception could await a renewed Becker nomination in 2010. In fact, next time the HELP Committee might actually have to hold hearings on the nomination, a step that was avoided in October. In the meantime, the other two Board nominations also are likely to be held up despite their inclusion in the carry-over, since Democrats do not want a Labor Board equally divided between Democrats and Republicans.
President Obama could make a recess appointment of Mr. Becker or someone else. He would not need Senate approval for this step. But that would be only a stopgap. Eventually, a regular nominee would have to be submitted to the Senate, and there is little chance opposition to Mr. Becker will abate with the passage of a few months. A less controversial choice might be the best option for the Administration.
Of course, this Administration setback raises a larger question: where is EFCA? The Board nominations were viewed by some as a backstop to the proposed legislation; if EFCA ran into trouble, advocates of labor law change at least could take solace in a pro-Labor NLRB that could overturn unfavorable agency decisions. But for now, it seems, the nominations have become unstuck.
And EFCA is yet to be taken up. Can Big Labor push through this hotly debated bill if the Senate won’t confirm the Administration’s nominee whose views most closely conform to the overhaul sought by EFCA, delaying action on all NLRB nominees? Maybe not. Perhaps that is why unions have begun to focus on changing state laws. (See With EFCA “Reform” on Hold in Congress, Unions Turn to State Legislatures for Labor Law Change.) One such effort, for example, in Oregon, resulted in a law that would bar employers from holding group meetings with employees to discuss unionization. Jackson Lewis is representing employers in a challenge to that enactment.
Congressional Democrats, however, also could try to push through EFCA wrapped up in a broader jobs bill, which reportedly is “on deck” after health care legislation is settled. This could speed consideration of EFCA and make opposition to the proposed NLRA amendments more difficult for lawmakers. Employers and their allies in Congress must be on guard that any EFCA measure is considered separately from a general employment bill.
Meanwhile, a cloud hangs over the NLRB’s many decisions issued during the past two years as the U.S. Supreme Court prepares to take up whether the agency has been authorized to act with only two members. (See U.S. Supreme Court to Decide Appeals Court Conflict Over NLRB Quorum.) A Board joined by three new members would resolve this problem for future cases. At this writing, however, the chances seem to be dimming that Craig Becker will be part of any long-term solution to this issue.