On February 9, 2010, Republican Senators, joined by two Democrats, blocked a floor vote on the controversial nomination of Craig Becker to the National Labor Relations Board. By a 52-33 vote, Senate Democrats fell short of the 60 votes necessary to move Becker’s nomination to a floor vote. Sens. Ben Nelson (D-NE) and Blanche Lincoln (D-AR) voted against Becker, who is associate general counsel to the Service Employees International Union (SEIU). Newly-seated Massachusetts Sen. Scott Brown (R-MA) joined his Republican colleagues in voting against the Becker nomination.

Becker was originally nominated to the NLRB in 2009, but Sen. John McCain (R-AZ) placed a “hold” on the nomination and requested that Sen. Tom Harkin (D-IA) hold a hearing. After the nomination was returned to the White House when the Senate adjourned in December, President Obama re-nominated Becker and Sen. Harkin agreed to hold a hearing. A summary of the February 2 hearing is posted here.

On Tuesday, February 2, 2010, the Senate Health, Education, Labor and Pensions (”HELP”) Committee held a hearing concerning the nomination by President Obama of Service Employees International Union (”SEIU”) associate general counsel Craig Becker to the National Labor Relations Board.

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.

Becker was the only 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 NLRB nominations to the floor for a full Senate within the next few weeks.

Sen. Harkin commenced Tuesday’s hearing by stating that “we are here today to take the rather unusual step of holding a hearing on a nominee for the National Labor Relations Board.”  Harkin explained that, although “it has not been the standard practice of this committee to hold hearings on NLRB nominations,” and in fact the last time the Committee held such a hearing was in 1993 on the nomination of the Chair of the Board, “my colleagues on the other side of the aisle have requested a hearing. And while I am reluctant to further prolong the consideration of an obviously well-qualified nominee, I was willing to bend over backwards to accommodate that request because I think the work of the NLRB is tremendously important and deserves this committee’s attention.” 

Harkin called Becker “one of the preeminent labor law thinkers in the United States” and added that “I can say with great confidence, he will be an invaluable addition to the NLRB.”  He remarked that much of the concern about Becker’s nomination seems to be focused on academic articles he has authored.  On this point, Harkin stated that “he has taken a critical approach to existing law … but that’s what academics are supposed to do - to contribute to the marketplace of ideas.” Harkin also pointed out that the Committee has confirmed members with both union and management backgrounds in the past “without any great cause for concern.”

Sen. Johnny Isakson (R-GA), standing in for Ranking Member Michael Enzi (R-WY), asked that two letters received by the Committee on Monday, both in opposition to Becker’s nomination, be included in the record. One letter was from 23 major trade associations, and the other was from an organization representing 600 manufacturers. 

Referring to the controversial Employee Free Choice Act (”EFCA”) currently before Congress, which would allow a union to become certified without a secret ballot election, Sen. Isakson observed that “some have expressed concerns that Mr. Becker’s past writings have indicated a belief that the NLRB has the authority to make some of the dramatic changes included in the card check bill without congressional action.”  Isakson stated that he asked Becker in a private meeting if, as a member of the NLRB, he would attempt to certify a union without a secret ballot election, and that Becker had answered no, the Board can only certify results of Board-conducted elections.

Sen. Isakson then addressed the concern that Becker “has advocated new body of campaign rules that would severely limit the ability of employers to voice their opinion on unionization,” including rules on captive audiences and union access to private employer property.  Again, Isakson stated that, in a private meeting, Becker “has assured me that these comments…were scholarly writings made as a scholar seeking to further meaningful and wide-ranging analysis of the law” and that these statements “will not control his judgment if he is confirmed as a member of the NLRB.”

On the same subject, Sen. Harkin asked Becker to address the concern of some critics that he would attempt to implement the “card check” process proposed in the EFCA administratively. Specifically, he asked Becker to explain how the National Labor Relations Act would constrain the Board’s ability to do so.  Becker replied that the Act “clearly precludes certification in the absence of a secret ballot election.”

Sen. Isakson asked, “Do you favor the NLRB limiting employers’ involvement in the election process?” Becker replied that current law clearly provides employers the right to free speech, citing the National Labor Relations Act and the First Amendment. He emphasized that employers have legitimate First Amendment rights, including the “indisputable right to express views on whether employees should unionize.”

Sen. McCain (R-AZ) asked Becker if he provided advice to ACORN for his current employer, and Becker replied that he had never done so. McCain then asked if Becker discussed labor law or efforts to organize home care workers with former Illinois governor Blagojevich.  Becker responded that he represented SEIU locals in Illinois, which had been working for a long period of time to organize home care workers. He stated that he had discussions with staff of former governor Blagojevich, and, on one occasion, with the former governor himself, on some technicalities related to the drafting of legislation that extended collective bargaining to those workers.

McCain’s most heated questions related to Becker’s intent to recuse himself from any Board matters involving the SEIU, his current employer. Sen. McCain asked Becker, “How many cases involving SEIU will you have to recuse yourself from?” Becker replied that the number is uncertain, but noted that the SEIU itself is rarely a party to Board proceedings.  He stated that he takes his ethical obligations very seriously, and that concerns about his ability to be impartial led to his execution of an ethics agreement, which details the circumstances under which he would recuse myself.  Under the terms of this ethics agreement, Becker pledged that he would recuse himself from any matter on which SEIU is a party for two years. In response to McCain’s questions, Becker promised that “I will comply with the terms of that pledge scrupulously,” to which McCain responded, “That’s not good enough.”

Becker received somewhat friendlier treatment from Sen. Robert Casey (D-PA), who remarked that “we don’t confirm judges that are robots…we confirm people that are human beings, that have a point of view and know how to argue and battle and be advocates.” Casey stated that “we want people who understand what it’s like to advocate for a position, but that doesn’t mean that you can’t exercise a kind of objectivity.”

At the close of the hearing, Sen. Harkin adjourned the Committee until Thursday morning at 10:00 a.m. He announced that any additional questions from members must be submitted before 10:00 a.m tomorrow morning, so that Becker may have time to reply before Thursday.

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.

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.

On December 24, 2009, the Senate returned seven nominations to the White House as it adjourned sine die until January 20, 2010. The returned nominees included Craig Becker, an Service Employees International Union (SEIU) associate general counsel who had been nominated by President Obama to the National Labor Relations Board on July 9, 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 requested a hearing on Becker’s nomination because he had “concerns regarding Mr. Becker’s written views, which indicate that he would prevent employers from having a role in union representation elections in their workplaces by doing away with requiring fair, secret ballot union elections when requested by an employer.” HELP Committee Chairman Tom Harkin (D-IA) stated that a hearing was not necessary and departed from longstanding Senate practice.

According to a Congressional Research Service report, under Senate rules, unconfirmed nominations are returned to the president at the end of a session or when the Senate adjourns for more than 30 days unless the Senate unanimously consents to holding the nomination over until the Senate reconvenes. President Obama’s options include resubmitting Becker’s nomination in January, making a recess appointment of Becker, or submitting a new nominee. The White House has not issued any statement on the return of the Becker 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.

On Wednesday, December 16, President Obama signed into law the Fiscal Year 2010 Consolidated Appropriations Bill (H.R. 3288).  This omnibus appropriations legislation provides additional funding to the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunities Commission, among other federal agencies.  The bill passed in the Senate by a 57-35 vote earlier this week, and previously passed the House by a vote of 221-202. 

On November 2, 2009, the Supreme Court granted certiorari in New Process Steel L.P. v. NLRB, paving the way for it to resolve the validity of hundreds of decisions issued by the National Labor Relations Board since January 25, 2008. As a result of an impasse in the final year of the Bush administration, three vacancies have gone unfilled, leaving only two Board members, Democrat Wilma Liebman and Republican Peter Schaumber. Three federal courts of appeal have upheld the decisions of the two-member Board, while the D.C. Circuit ruled that the decisions were invalid. Oral argument will likely occur in March 2009 and a decision will be issued by June 2009.

The Board has been deciding cases only when the two remaining members agreed on a result. On October 21, 2009, the Senate Health, Education, Labor and Pensions Committee approved President Obama’s three nominees to the Board. However, the nominations are currently stalled following a hold placed by Sen. John McCain (R-AZ) over Republican concerns about nominee Craig Becker.

On October 21, 2009, by a 15-8 vote, the Senate Health, Education, Labor, and Pensions (”HELP”) Committee approved SEIU associate general counsel Craig Becker, the most controversial of President Obama’s three nominees to the National Labor Relations Board (NLRB). The HELP Committee unanimously supported the nominations of Democratic union attorney Mark G. Pearce and Republican Senate staffer Brian E. Hayes to the Board.  After the votes, Sen. John McCain (R-AZ) placed a “hold” on the Becker nomination, which will likely delay the full Senate’s consideration on all three nominations. 

Becker, who serves as Associate General Counsel to both the SEIU and the AFL-CIO, has drawn opposition from business groups, led by the U.S. Chamber of Commerce, and Republicans, who have called for a hearing over his nomination. Sen. McCain has informed HELP Committee Chairman Tom Harkin (D-IA) that he has “concerns regarding Mr. Becker’s written views, which indicate that he would prevent employers from having a role in union representation elections in their workplaces by doing away with requiring fair, secret ballot union elections when requested by an employer.” Sen. Harkin asserted that holding a hearing was unnecessary and departed from longstanding practice. 

The NLRB currently is functioning with only two of five board positions filled, raising questions over the validity of two-member Board decisions that has resulted in the D.C. Circuit invalidating two-member Board decisions. Other circuits have upheld two-member Board decisions and the issue may be resolved by the U.S. Supreme Court this year. If confirmed by the Senate, President Obama’s three nominees will return the Board to full strength.

On July 24, 2009, the U.S. Chamber of Commerce sent a letter to the U.S. Senate Committee on Health, Education, Labor, and Pensions in which the Chamber urged the Senate Committee to conduct a thorough hearing regarding Craig Becker’s proposed nomination to the National Labor Relations Board. 

Submitted to Committee Chairman Edward M. Kennedy (D-Mass.) and Committee Ranking Member Michael Enzi (R-Wyo.), the letter “urges the Committee to hold thorough hearings to carefully review the president’s nomination … before acting on his confirmation.” While the Chamber’s letter raises several concerns regarding Becker’s nomination, it does not explicitly take a position for or against the nomination.

Becker currently serves as the Associate General Counsel to the AFL-CIO and the Service Employees International Union (SEIU). According to the Chamber, Becker’s affiliation with the SEIU “raises questions about Mr. Becker’s ability to impartially judge cases that may come before the Board.” The letter further references the SEIU’s “record of using questionable pressure tactics with the goal of forcing employers and workers to recognize unions without the democratic protection of secret ballot elections.” 

The letter specifically raises concerns regarding whether Becker would seek to implement portions of the controversial Employee Free Choice Act “even if it is never enacted by Congress.” The letter also urges the Committee to question Becker regarding past comments about the National Labor Relations Act, including prior statements that employers should be stripped of their authority to participate in labor representation proceedings.

The letter also suggests Becker supports repeated grievance strikes “not merely to resolve grievances, but instead as a way to give labor unions greater power and leverage over employers in bargaining than the traditional strike.”  The letter concludes that while such views “are alarming in and of themselves, what is especially troubling is that Mr. Becker does not necessarily believe that such changes require Congressional approval.”

President Obama first announced Becker’s intended nomination on April 24, 2009, and he formally sent the nomination to the Senate on July 9, 2009.  A summa cum laude graduate of Yale College in 1978 and Yale Law School in 1981, Becker has practiced labor law for the past 27 years and has taught law at the UCLA, University of Chicago, and Georgetown.