President Obama’s nominee to the NLRB, Craig Becker, failed to garner the support necessary to overcome a filibuster earlier today. Click here for the ABC News story. As a result of a "hold" placed on his nomination, under Senate rules 60 votes were required to confirm the nomination. Only 52 senators voted in favor of Mr. Becker.
It appears that Mr. Becker’s nomination has become essentially a "proxy fight" over the Employee Free Choice Act (EFCA). Given some of Mr. Becker’s writings, along with his work for the SEIU and the AFL-CIO, some senators are concerned that he will use the NLRB’s administrative powers to implement significant portions of EFCA without a congressional vote. Mr. Becker’s attempt to distance himself from these writings during his confirmation hearing was apparently not enough for the senators with concerns.
It is interesting to note some of the senators who voted against Mr. Becker’s confirmation. Newly elected Scott Brown (R-Mass.) was one of those votes, as was Blanche Lincoln (D-Ark.) and Ben Nelson (D-Neb.). These votes would appear to be a signal of a lack of support for EFCA on the part of those who cast them. Indeed, assuming Senate Republicans stay united in their opposition to EFCA, the vote on Mr. Becker would suggest that EFCA does not have the requisite 60 votes to overcome a Republican-led filibuster.
Probably the most significant impact of the vote, however, is its impact on the NLRB as an institution. The NLRB should have five members. For the last couple of years, however, a deadlock on appointments to the NLRB has resulted in only two-members. Indeed, the delegation of power to these two members is currently the subject of an appeal to the U.S. Supreme Court, which challenges the legality of that delegation. As a result, in hundreds of cases, the rulings of the NLRB are in question.
The next move on Mr. Becker specifically, and the nominations to the NLRB generally, will be interesting. The President does have the power to make recess appointments to the NLRB, which has been done in the past. Whatever happens, one thing is for sure: the outcome will have a direct impact on the development of labor law for a number of years.