As discussed in our alert on February 4, 2010 we predicted that the seating of Scott Brown would effectively result in the defeat of controversial Obama National Labor Relations Board (NLRB) nominee Craig Becker. On February 9, our prediction came true — Senate Republicans, joined by several Democrats, successfully filibustered Becker's nomination to the NLRB by voting against cloture, which means Becker's nomination will not proceed to a confirmation vote. The 52-33 vote fell well short of the 60 votes necessary to advance Becker's nomination and saw a couple of Senate Democrats — Senator Blanche Lincoln (Arkansas) and Senator Ben Nelson (Nebraska) — break party lines by voting against Becker.

Becker's nomination represents one of three nominees by President Obama to fill the existing NLRB vacancies. The other two nominees, management attorney Brian Hayes and union attorney Mark Pearce, have been approved by the Health, Education, Labor and Pension (HELP) Committee. Senate Democrats sought to vote on all three board nominees as a package.

Becker has been associate general counsel for the Service Employees International Union for almost 20 years and staff counsel for the AFL-CIO for six years. Becker is believed to be the first ever NLRB nominee who has ever actually been employed by a union immediately prior to the nomination. If approved to the board, Becker was expected to push an aggressive union agenda.

Notably, the vote against cloture does not completely end the possibility that Becker ends up on the NLRB. Several potential courses of action are outlined below:

  • Senate Democrats could file another cloture petition and seek another vote on Becker's nomination. However, this option appears unlikely given the February 9 bipartisan vote against Becker.
  • President Obama could appoint Becker, or any of the other nominees, to the board through a recess appointment. If so, Becker's appointment would be effective until the end of the next Congressional session, or December 2011. However, such a move would be viewed as an obvious partisan favor to organized labor, and it is unclear whether President Obama would take this step in light of the bipartisan opposition to Becker.
  • Becker could withdraw his nomination.

Regardless of what happens next with Becker, the successful bipartisan filibuster demonstrates just how much the political environment has changed in Washington during the past year. It is a clear signal that, at least through the mid-term elections, the Obama Administration will be severely hampered in its ability to push through a pro-labor agenda.