The Senate on Feb. 9 failed to confirm labor lawyer Craig Becker’s appointment to the National Labor Relations Board (NLRB), but employer organizations fear it’s only a matter of time before Becker takes his board seat anyway.
President Obama could invoke his Constitutional right to make crucial appointments on his own while Congress is in recess, as it is this week. Such a recess appointment would leave opponents with no way to keep the pro-union Becker off the NLRB. He would become a member immediately, serving at least until next January.
The Becker fight is more than just the usual Washington infighting for employers that fear an NLRB that includes Becker. Their concern: That the current associate general counsel to the Service Employees International Union and the AFL-CIO could tip the NRLB’s balance to heavily favor unions instead of employers.
Currently, three of the five seats on the National Labor Relations Board are vacant. If Becker is confirmed, two members would be generally pro-union and one would probably favor employers. NLRB Chair Wilma B. Liebman was appointed by Obama last year. Peter Schaumber was appointed by President George W. Bush, and served as NLRB chair from March 2008 to January 2009.
Becker needed 60 votes in the Senate to confirm his appointment. He only mustered 52—all Democrats—while 31 Republicans and two Democrats voted against him. Senate Republicans were so opposed to his confirmation that they mounted their first-ever filibuster against an Obama administration nominee.
But business interests still worry that may not be enough to keep Becker from becoming a member of the board. The U.S. Chamber of Commerce, the National Association of Manufacturers and other pro-business organizations testified against him in Senate hearings.
On Feb. 25, labor-relations expert David Rittof will host an HR Specialist webinar on employer concerns about organized labor. “Beyond EFCA: Locking Out Unions in a Pro-Union Environment” will detail steps employers can take to keep their workplaces union-free.
Could Becker join NLRB anyway?
The Senate Health, Education, Labor and Pensions (HELP) Committee approved Becker’s nomination on Feb. 4, and forwarded it to the full Senate for a final confirmation vote. The committee balloting broke on party lines: 13 Democrats in favor, 10 Republicans opposed.
In the full Senate, Democratic Sens. Blanche Lincoln (Ark.) and Ben Nelson (Neb.) joined 31 Republicans who voted against Becker, creating a large enough minority to block his confirmation.
Even so, Obama could still issue a recess appointment, bypassing Senate confirmation. Obama said last Friday that he wasn’t inclined to issue any recess appointments this week, after the Senate on Thursday confirmed 29 agency and judicial appointments.
That action helped clear a logjam. At one point, 63 Obama administration appointees were awaiting confirmation hearings and Senate votes
Obama did not specifically mention Becker when said he wouldn’t issue any recess appointments this week. But he also didn’t rule out taking action when Congress adjourns for its Easter recess on March 25.
Immediately after the Senate vote, union advocates called on the President to appoint Becker.
Of the nine NLRB members appointed by the Bush administration made, seven gained their seats via recess appointments.
Limits on employers
Editorials arguing against Becker’s confirmation pointed to a law review article he wrote in 1993 that said, “Just as U.S. citizens cannot opt against having a congressman, workers should not be able to choose against having a union….”
In fact, Becker has said he wants new rules that would severely compromise employers’ ability to argue against unionization of their workforces, limiting anti-union speeches and literature and allowing unprecedented workplace access for union organizers.
In confirmation hearings last month, Becker dismissed those sentiments as “the views of a scholar” and said he would follow Congress’ intent when asked to interpret the National Labor Relations Act.
As a union lawyer, Becker helped author the controversial Employee Free Choice Act (EFCA). Those who oppose Becker’s appointment fear that a union-leaning NLRB could use its power to grant even more influence to organized labor than EFCA would.
