On Tuesday, the Senate rejected advancing the nomination of Craig Becker to serve as a member of the National Labor Relations Board (NLRB). Becker’s proponents failed to garner the 60 votes needed to limit debate over his nomination and allow a confirmation vote to occur. The 52-33 vote took place less than a week after the Senate Health, Education, Labor and Pensions (HELP) Committee approved Becker’s nomination by a party-line 13-10 margin.

Becker’s fate seemed sealed after Republican Scott Brown was sworn in last Thursday as a Massachusetts senator, eliminating the Democrat’s 60-seat filibuster-proof majority. Any hope that at least one Republican would cross party lines to vote in Becker’s favor was all but lost when it was announced on Monday that Democratic Senator Ben Nelson (D-NE) opposed Becker’s nomination. In a press release, Nelson stated, “Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB, and that he would pursue a personal agenda there, rather than that of the Administration.” Nelson added that many of Becker’s positions he advocated in scholarly works “fly in the face” of Right to Work laws. Senator Blanche Lincoln (D-AR) joined Senator Nelson in opposing cloture on Becker’s nomination.

Senator Nelson highlighted some of the positions taken by Becker, including his belief outlined in a 1993 Minnesota Law Review article that “[o]n account of the asymmetry between representation elections in the workplace and the polity . . . employers should have no legally sanctioned role in union elections."  In this article Becker also suggested that employees should be compelled to join labor unions: “…it could be argued that industrial democracy should be made more like political democracy by altering the nature of the choice presented to workers in union elections. Such a reform would mandate employee representation, and the question posed on the ballot would simply be which representative.”

Although Becker testified at a hearing before the HELP Committee that such statements were intended to be provocative and that he would respect the role of Congress in creating labor law policy, many lawmakers and members of the business community have feared that Becker would try to implement his views through Board decisions or rule-making.

It is unclear when or if the Senate will vote on President Obama’s two other NLRB nominees, Mark Pearce and Brian Hayes. There has been some speculation that Becker could be seated by means of a recess appointment when the Senate adjourns for the Presidents Day recess. According to an article in The Hill’s Blog Briefing Room, Obama is not adverse to this possibility, saying: “If the Senate does not act to confirm these nominees, I will consider making several recess appointments over the upcoming recess, because we cannot allow politics to stand in the way of a well-functioning government.” If the President takes this route, the recess appointment would expire by the end of the next Congressional session, roughly the end of the next calendar year, unless the Senate confirms the appointment.

Photo credit:  MBPHOTO, INC.