On Tuesday, February 2, 2010, at 4:00 p.m., the most controversial of President Obama’s nominees to the National Labor Relations Board (”NLRB”), Service Employees International Union associate general counsel Craig Becker, will appear at a hearing before the Senate Health, Education, Labor and Pensions (”HELP”) Committee. In 2009, Sen. John McCain (R-AZ) placed a “hold” on Becker’s nomination and requested a hearing, effectively derailing Becker’s nomination. After the Senate returned the Becker nomination when it adjourned in December, President Obama renominated Becker on January 20, 2010 by President Obama.

Senate Republicans contend that Becker’s union ties and prior writings raise serious questions about his suitability to serve on the five-member board. Before relenting this week, Sen. Harkin (D-IA) and other Senate Democrats rejected these arguments, noting that by virtue of the partisan appointment process to the Board, in which the White House appoints a three-to-two partisan majority, Board members typically have union or management ties. Becker has submitted written answers to over 280 written questions from HELP Committee Republicans and made himself available to meet individually with Senators critical of his nomination, but Senate Republicans, led by Sen. McCain, have insisted that a formal confirmation hearing be held. 

By holding a hearing, Senate Democrats are seeking to break an impasse in the Board that has left it short-handed since early 2008. For several years, the Senate has considered multiple nominations to the NLRB in a bloc and Senate Democrats have continued to insist that Becker be voted on with President Obama’s other two nominations, Democrat union attorney Mark Pearce and Republican Senate staffer Brian Hayes. As a result, the Pearce and Hayes nominations have remained in limbo, and neither nominee received a floor vote in 2009. Previously, in 2009, the Senate HELP Committee voted 15-8 to send Becker’s nomination to the Senate floor, with two Republicans joining committee Democrats voting in Becker’s favor.

At the time of publication, Becker is the only scheduled witness at the hearing.  Sen. Harkin has scheduled a February 4 meeting, at which time the committee is expected to vote on Becker’s nomination. If Becker is approved again by the HELP Committee, Democrats are expected to try to bring the NRLB nominations to the floor for a full Senate within the next few weeks.

On January 20, 2010, President Obama renominated Service Employees International Union (SEIU) associate general counsel Craig Becker to the National Labor Relations Board. The Senate returned Becker’s controversial nomination to the White House on December 24 when it adjourned sine die.

In 2009, the Senate HELP Committee voted 15-8 in favor of sending Becker’s nomination to the Senate floor, but Sen. John McCain (R-AZ) immediately placed a “hold” on Becker’s nomination, effectively barring a vote on the nomination. Sen. McCain will likely re-issue a hold on the nomination.

President Obama’s other two pending NLRB nominees, Democrat union attorney Mark Pearce and Republican Senate staffer Brian Hayes, did not receive floor votes after their unanimous approval by the HELP Committee, but their nominations were not returned to the White House. President Obama and Senate Democrats seek Senate consideration of all three nominations in a bloc, in line with recent Senate confirmation practices.

Becker’s nomination will be considered again by the Senate HELP Committee. If approved a second time by the committee, Senate Democrats are expected to seek cloture to limit debate and bring the nomination to the Senate floor for a vote.  It is unclear whether Senate Democrats will be able to overcome Sen. McCain’s hold.

Core Provisions: This resolution calls for the mandatory use of the E-Verify program by employers of workers within the United States as well as enforcement policies that hold both employers and employees responsible for violations of United States immigration law. The resolution also states that it is a “critical responsibility” of the Federal Government to install and sustain border infrastructure and manpower to control the United States borders and protect from unauthorized passage of persons or contraband. Additionally, the resolution states that no immigration reform adopted by Congress should legalize, condone, or grant amnesty for the otherwise unlawful entry or presence of individuals in the United States.

Status: Rep. Jason Chaffetz (R-UT) and twenty-one co-sponsors introduced the resolution on January 21, 2010. It was referred to the House Committee on the Judiciary and the Committees on Education and Labor, and Homeland Security on the same day.

On January 4, 2010, the Supreme Court set New Process Steel L.P. v. NLRB for oral argument on March 23. In November, the Supreme Court granted certiorari in New Process Steel to address the legality of NLRB decisions issued by the current two-member National Labor Relations Board. As a result of political impasses in the final year of the Bush administration and the first year of the Obama Administration, three vacancies on the Board have gone unfilled for nearly two years, leaving only two Board members, Democrat Wilma Liebman and Republican Peter Schaumber, to issue decisions. Before losing its quorum, the Board delegated its decision-making authority to the remaining two Board members. Five federal courts of appeal, including most recently the Tenth Circuit in December, have upheld the decisions of the two-member Board, while the D.C. Circuit ruled in New Process Steel that the decisions were invalid. A decision is expected by the end of June.