Thanks to the Mid-Atlantic snowstorm, Senate debate on the nomination of SEIU counsel Craig Becker to the National Labor Relations Board has been postponed until Tuesday. A cloture vote is now anticipated after 5 p.m.

Opposition to Becker is strong among the business community:

• Feb. 5 letter from the National Retail Federation.
• Feb. 4 letter from the U.S. Chamber of Commerce.
• Feb. 1 Jetter from National Association of Manufacturers and more than 550 manufacturing companies and associations.
• Feb. 1 letter from the Coalition for a Democratic Workplace, to the NAM belongs.
• Jan. 29 letter from 23 business trade associations, including the NAM.

Kevin Williamson, an editor at National Review, analyzes Becker’s anti-employer writings and calls Becker The ‘Shut Up’ Candidate“:

He has argued that businesses should be prohibited from presenting the case against organizing unions — to their own workers, on their own property, on their own time. And if secret-ballot elections survive his card-check dreams, he doesn’t want anybody taking too close a look at any possibly fraudulent election: He has written that employers should be banned from placing observers at the polls or challenging ballots. He argues that businesses should be compelled to open up their own private property so that union organizers may conduct their electioneering on the premises.

So what if the organizing vote is fraudulent? Or marked by the trademark violence and intimidation tactics long associated with Big Labor? Becker’s answer, in his own words, is this: “Employers should have no right to raise questions concerning voter eligibility or campaign conduct. . . . They should not be entitled to charge that unions disobeyed the rules governing voter eligibility or campaign conduct. On the questions of unit determination, voter eligibility, and campaign conduct, only the employee constituency and their potential union representatives should be heard.” Legalese for: “Shut up.”

The Senate breaks next week for the Presidents Day recess, and buzz is picking up about a possible recess appointment for Becker. The unions are signaling their support for the move, a Politico article suggests:

“They can’t let the minority party call the shots when it comes to the handling of critical nominations,” Bill Samuel, legislative director of the powerful AFL-CIO, said, calling on Obama to consider recess appointing Becker if his nomination stalls.

According to the Congressional Research Service, a recess appointment made in mid-February would serve until the conclusion of the next Senate session, i.e., the end of 2011.  One wonders: If President Obama were to recess appoint Becker, what would happen to the two, non-controversial nominees, Mark Pearce, the Democrat, and Brian Hayes, the Republican? Recess appointments also, or straight up-and-down Senate votes allowing them to complete terms, which for Hayes is through 2012 and for Pearce, 2013?

Finally, as previously noted, NLRB Chairman Wilma Liebman on Friday took the unusual step of getting involved in the Senate confirmation battle by issuing a news release decrying the lack of a full quorum on the NLRB. She omits the fact that President Bush’s nominees to fill the vacancies in 2007 and 2008 were blocked by the Senate majority, who also prevented recess appointments by scheduling regular pro forma sessions.

The Hill, “Labor board chief wants vote on NLRB nominees”

Amid the health care and debt debates on Dec. 24, the Senate conducted a bit of low-profile but welcome business, sending back to the White House a number of controversial nominees made by President Obama.

Included in the list of too-hot-to-touch nominees is Craig Becker, counsel for the Service Employees International Union nominated to serve on the National Labor Relations Board. Becker has proposed a radical shifting of employee-employer relations to force unionization of workplaces. The National Association of Manufacturers formally opposed his nomination.

Despite Becker’s outside-the-mainstream views, the Senate Health, Education, Labor, and Pensions Committee confirmed his nomination without even holding a hearing to hear Becker’s testimony. Sen. John McCain (R-AZ) subsequently put a hold on Becker’s nomination.

Here’s the Senate’s rejection of the nominee made via a procedural move as reported on page S14139 of The Congressional Record:

ORDER FOR NOMINATIONS RECEIVED
Mr. CARDIN. As in executive session, I ask unanimous consent that all the nominations received by the Senate during the 111th Congress, first session, remain in status quo, notwithstanding the December 24, 2009, adjournment of the Senate, and that the provisions of rule XXXI, paragraph 6, of the Standing Rules of the Senate, with the following
exceptions: PN1119, COL David Teeples; Calendar No. 32, Dawn Johnsen; Calendar No. 205, Mary Smith; Calendar No. 312, Christopher Schroeder; Calendar No. 488, Edward Chen; Nos. 491 and 492, Craig Becker, and Calendar No. 579, Louis Butler.
The PRESIDING OFFICER (Mr. PRYOR). Without objection, it is so ordered.

The Washington Post briefly reported the Senate’s action at its Federal Eye blog. Edward Hopson at the Wyatt Employment Law Report also notes Becker’s problems and reports that the other two nominees to the NLRB — former Republican Senate staffer Brian Hayes, and Buffalo, N.Y., labor lawyer Mark Pearce — were not voted on by the Senate.

The President can send Becker’s nomination back up to the Senate in 2010, but might we see the first occasion for an Obama recess appointment? In the Bush Administration, Senate rejection prompted recess appointments (see CRS report), but the Obama Administration has yet to take that step in light of the Democratic majority in the Senate.

Whatever the next steps, the Senate’s action is a clear statement from the Democratic majority that the nomination of a top union lawyer with a history of seeking to marginalize employers was politically untenable.

UPDATE 4:40 p.m. The Senate’s action occurred under Rule XXXI, Paragraph 6, of the Standing Rules of the Senate. Also, this Point of Law post covers the Senate’s decision to return the nomination of two controversial judicial nominees, Louis Butler and Edward Chen.

The Wall Street Journal today editorializes on President Obama’s three nominees to the National Labor Relations Board and the need for the Senate HELP Committee to hold confirmation hearings to delve into the records and thinking of the candidates, in particular, former SEIU counsel Craig Becker. From “Acorn’s Ally at the NLRB,” with the sub-hed, “Obama appoints an SEIU man with ties to Blago”:

Mr. Becker is associate general counsel at the Service Employees International Union (SEIU), which is most recently in the news for its close ties to Acorn, the disgraced housing shakedown operation. President Obama nominated Mr. Becker in April to the five-member NLRB, which has the critical job of supervising union elections, investigating labor practices, and interpreting the National Labor Relations Act. In a 1993 Minnesota Law Review article, written when he was a UCLA professor, Mr. Becker argued for rewriting current union-election rules in favor of labor. And he suggested the NLRB could do this by regulatory fiat, without a vote of Congress.

Yet now that he could soon have the power to act on this conviction, Mr. Becker won’t tell Congress if this is what he still believes. In written responses to questions from Republican Orrin Hatch, Mr. Becker promised only to “maintain an open mind about whether [his] suggestions should be implemented in any manner.” That sounds like his mind is made up but he won’t admit it lest it hurt his confirmation.

The Journal observes that it’s not unusual for nominees to the bipartisan NLRB to be packaged together for a confirmation vote without a hearing, and in this case, Sen. Mike Enzi (R-WY), ranking Republican on the HELP Committee, understandably wants to ease things for the GOP candidate, his former committee aide, Brian Hayes. (The other nominees is Mark Pearce, a longtime labor lawyer from Buffalo.)

But too much is at stake with the National Labor Relations Board, and the pro-labor majority could push organized labor’s jobs-killing agenda through regulation and rulings, achieving what could not be achieved through Congress.

We posted on the nominees yesterday at the Manhattan Institute’s legal blog, Point of Law, commenting: “You would think that an Obama Administration, intent on transparency, would insist that its nominees receive the public scrutiny that comes with confirmation hearings.”

Accountability demands a hearing.

Related…

• Workforce Management, “NLRB Decisions Could Make Card Check a Reality“
• Walter Olson, Point of Law, “The Obama NLRB arrives“
• Shopfloor, “Card Check and the National Labor Relations Board”