A number of important labor positions in the Obama Administration remain unfilled. As the Senate returned for business this week, it appears that the Administration may resort to extraordinary measures in an effort to confirm certain labor nominees.
On Thursday evening, Senate Democrats filed a motion to end debate on the nomination of Patricia Smith for the Solicitor of the U.S. Department of Labor—the agency’s top lawyer. This unusual move is believed by some to be an attempt to seat Ms. Smith before newly-elected Senator Brown from Massachusetts is sworn in and the Democrats lose their 60-vote supermajority. Ms. Smith could get an “up or down” vote next week if all 60 Democratic Senators agree to end debate on her nomination. It takes 60 Senators to agree to end debate and then a simple majority to confirm her to be Solicitor.
Ms. Smith is the New York State Commissioner of Labor, where she has a reputation for aggressive enforcement efforts against employers, particularly in lower wage industries. Ms. Smith’s nomination has been “held” for the past year by several Republican Senators who have expressed concern about information she has provided relating to her prior enforcement efforts and partnership with New York unions and community activists through a program known as “Wage Watch.”
There are also pending nominees to the National Labor Relations Board, including Craig Becker, who is currently Associate General Counsel to both the Service Employees International Union and the AFL-CIO. A committee hearing on Mr. Becker’s nomination is scheduled next week and, assuming he is approved by the committee, his nomination will then be considered by the full Senate. The Democrats may also seek to cut off debate and force a vote on Mr. Becker’s nomination before Senator-elect Brown is seated, which currently is expected to occur the second week of February.
Mr. Becker was originally nominated to the NLRB last year, but never received a vote on his nomination reportedly because he has expressed several controversial views on labor-management issues, including writing that employers should be prevented from participating in their employees’ decision whether to unionize. If Mr. Becker is confirmed, the majority of NLRB members will be former union officials or union attorneys.
If the efforts to force votes on either of these nominees fails, it is possible that the White House may seek to bypass the Senate and seat the nominees through a recess appointment.