Several months ago President Obama nominated three candidates to fill longstanding vacancies on the five-member National Labor Relations Board (NLRB). The Board is the administrative agency responsible for administering the National Labor Relations Act (NLRA). The NLRB has operated with just two members since 2008.
President Obama nominated Craig Becker, an associate general counsel for the Service Employees International Union and staff counsel for the AFL-CIO, union attorney Mark Pearce, and Brian Hayes, labor policy director for Republicans on the Senate Health, Education, Labor, and Pensions (HELP) Committee. All three nominees have extensive labor law experience.
Nominees Pearce and Hayes were generally considered to be solid nominations that would meet little or no opposition in confirmation proceedings. In contrast, nominee Becker was described by business interests as a very controversial nominee who held labor law reform views “far outside the mainstream.” Becker’s nomination was opposed by the U.S. Chamber of Commerce, National Association of Manufacturers, a number of other pro-business organizations, and the Wall Street Journal editorial board.
The Senate HELP Committee voted unanimously to approve nominees Pearce and Hayes, whereas nominee Becker was approved on a vote of 15-8, primarily along party lines. Senate Democratic leaders indicated that the Senate would vote on the three NLRB nominees as a package. However, following the HELP Committee’s vote, Sen. John McCain (R-Ariz.) placed a “hold” on nominee Becker. A “hold” is a procedural device that prevents the full Senate from voting on a nomination. As a result of Sen. McCain’s “hold,” not only was Becker’s nomination stalled, but the nominations of Hayes and Pearce also were not scheduled for a Senate vote.
On December 24, the Senate sent Becker’s nomination back to the White House rather than holding the nomination for consideration when the Senate returns to session on January 19, 2010. The nominations of Pearce and Hayes were held over for the Senate’s 2010 session.
However, the Senate’s action does not necessarily end the drama nor definitively eliminate Becker from the nomination process. The president could renominate Becker for an NLRB vacancy when the Senate returns to session, or the president could elect to nominate someone else in place of Becker. The president also has the option to make recess appointments to the Board before the Senate returns on January 19, 2010.
The labor law ideologies held by the members of the NLRB have real world consequences for employers and unions in light of the central role the Board plays in supervising employee elections and refereeing disputes between employees, unions and employers. The Board has the ability to exercise a great deal of discretion in interpreting the provisions of the NLRA when presented with differing fact situations. Many observers believe that once the NLRB is fully staffed with five members, dozens of pro-employer decisions decided within the past five years will likely be reversed or substantially modified.