On February 9, 2010, Senate Democrats were unable to hold ranks or muster any Senate Republican support on a cloture motion to end debate on the nomination of Craig Becker to fill one of the three vacant seats on the National Labor Relations Board (Board). Sixty votes were needed to end debate and bring the nomination to a floor vote. The Senate vote was 52-33, with two Democrats, Senator Bill Nelson (D-Neb.) and Senator Blanche Lincoln (D-Ark.), joining Senate Republicans in voting against the cloture motion.

As we reported previously (Becker NLRB Nomination Resubmitted Amid Opposition), in late January 2010 President Obama resubmitted the controversial nomination of Mr. Becker for one of three vacant seats on the Board. Earlier this month the Senate Health, Education, Labor and Pension (HELP) Committee relented and agreed to demands of Sen. John McCain (R-Ariz.) and various business trade associations that the HELP Committee hold a formal hearing on Mr. Becker’s nomination. The HELP Committee had not held a formal hearing on a nominee to be a Board member since 1980. Following the hearing, Becker’s nomination was approved by the HELP Committee on a straight party-line vote of 13-10 (the previous HELP Committee vote was 15-8 in favor of Becker’s nomination).

Prior to the cloture vote, President Obama stated that if Republicans continued to block qualified nominees, he would consider making recess appointments during the upcoming Senate recess because “we can’t afford to let politics stand in the way of a well functioning government.” Organized labor has urged President Obama to use recess appointments to fill vacancies on the Board. A recess appointment would allow Mr. Becker to serve as a Board member until the end of the 2011 session without Senate confirmation. Both business groups and Senate Republicans have expressed their strong opposition to a recess appointment of Becker, pointing to the lack of support for Mr. Becker’s nomination already demonstrated by the drawn out maneuvering related to his nomination to date.

The nominations of the other two Board nominees, Brian Hayes (R), the labor policy director for the Republican members of the HELP Committee, and Mark Pearce (D), an attorney who represents unions and employees, have strong bipartisan support and remain pending in the Senate. However, it is unlikely that these two nominations will be acted upon by the Senate anytime soon. The Board currently has two members, one Democrat and one Republican. The addition of only two Board nominees would more likely than not simply result in a continuation of the current deadlock of the Board with respect to the backlog of controversial cases and issues. This logjam will not be resolved until after all three vacant Board seats are filled.