As expected, the Senate Democratic majority failed to muster the votes necessary to invoke cloture on the nomination of Craig Becker to the NLRB yesterday. The U.S. Chamber of Commerce’s release below provides additional details as well as three possible directions this might take.


TO:     All Members of the U.S. Chamber’s Labor Relations Committee and other interested members of the business community

We wanted to take a minute and update you on the status of the nomination of Craig Becker to the NLRB.

A few minutes ago, the Senate voted against cloture, which means they will not now proceed to a confirmation vote (the vote was 52-33, with 60 required to move forward; Democrats Lincoln (AR) and Nelson (NE) joined all Republicans voting in opposing the motion). As you know by now the Chamber opposed this nomination, and we thank those of you who helped in this effort.

There are several possibilities on where things move from here and we wanted to lay them out for you.

First, the failure to reach 60 votes on this cloture motion is not, by itself, fatal to the nomination. Sen. Reid could file another cloture petition at any time and seek another vote. However, the bipartisan vote in opposition is a sign that it will be very difficult for Mr. Becker to be confirmed at this time.

Second, the President could exercise his authority to make one or more recess appointments to the NLRB during the next Senate recess (scheduled around President’s day). Today, during a news conference, the President indicated that he would seek to make his first recess appointments during the upcoming recess, but he did not specifically mention the NLRB. If he chooses this route, a recess nominee could remain in place until the end of the next session of Congress, or December 2011. He could theoretically make a recess appointment of Mr. Becker, though he might also choose another individual so that Mr. Becker does not build up a record at the NLRB that could be criticized.

Third, Mr. Becker could withdraw and another nominee could be nominated.

At this point it is unclear what the next course of action is. The political dynamics will change if either of the later options is exercised and they will change regardless as time moves forward and we come closer to the expiration of Board Member Schaumber’s term (in July) and General Counsel Meisburg’s term (in August). The Supreme Court is also expected to definitively settle the question of whether a two-member board can issue decisions this spring.