On Wednesday, President Obama re-submitted to the Senate his nomination of controversial candidate Craig Becker to be a member of the National Labor Relations Board (NLRB). Obama announced his intent to nominate Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations, in April, and officially nominated him in July.  The Senate Health, Education, Labor and Pensions Committee approved Becker’s nomination – as well as those of Mark Pearce and Brian Hayes – in October.  The belief was that all three nominations would be presented to the Senate as a package, a move that many Republican lawmakers and members of the business community opposed, as doing so would limit the Senate’s ability to evaluate Becker on an individual basis. Becker’s divisive views regarding an employer’s role during a representation election campaign as well as the fear that he would be willing to use Board decisions to effectively institute elements of the proposed Employee Free Choice Act were likely factors causing Sen. John McCain (R-Ariz.) to put a hold on Becker’s nomination. Before the holiday recess, the Senate returned his nomination to the White House for reconsideration.

It is unclear whether Becker’s nomination will face a similar fate this time around. To complicate the matter, the NLRB is currently operating with only two members. Whether the traditionally five-member Board has the authority to decide cases with only two sitting members is an issue the U.S. Supreme Court will determine this term in New Process Steel v. NLRB. At stake in this case are hundreds of Board decisions. It is believed that if the Supreme Court effectively invalidates those two-member decisions, a full Board would simply re-issue those opinions. The failure of the three NLRB nominees to be confirmed, however, will necessarily impact this strategy.