Glenn Spencer is the Executive Director, Workforce Freedom Initiative, U.S. Chamber of Commerce.
As we enter the second session of the 111th Congress, organized labor's sense of frustration is palpable. A sweeping healthcare bill is on life support. The crown jewel of the labor agenda, the Employee Free Choice Act (EFCA), also known as Card Check, is stalled, at least for now. And on February 9, the Senate, in a bi-partisan vote, dealt a major blow to what many in the labor movement had considered Plan B for Card Check - the nomination of Craig Becker to the National Labor Relations Board (NLRB).
Becker's nomination ran into trouble from the start. His controversial writings indicated an interpretation of the National Labor Relations Act (NLRA) that was far outside of the mainstream. His statement in a Minnesota Law Review article that employers "should be stripped of any legally cognizable interest in their employees' election of representatives" raised more than a few eyebrows. This concern was only amplified by another passage from the same piece in which Becker wrote that employers "should not be entitled to charge that unions disobeyed the rules governing voter eligibility or campaign conductonly the employee constituency and their potential union representatives should be heard." The suggestion that a Board nominee had no interest in listening to allegations of illegal activity struck many in the labor law community as deeply disturbing. The analogy would be a nominee for a federal judgeship stating that he or she wasn't interested in hearing from the prosecution since the matter was purely between a defendant and his or her assailant.
But what may have doomed the nomination was Becker's assertion that a substantial reinterpretation of the NLRA "could be achieved with almost no alteration to the statutory framework," which some Senators interpreted as meaning the NLRB could unilaterally implement Card Check. At a Senate Health, Education, Labor and Pensions ("HELP") Committee hearing, Becker sought to distance himself from this controversy. Yet his union supporters were far less circumspect. As a senior AFL-CIO official wrote in the Huffington Post on February 4, "If we aren't able to pass the Employee Free Choice Act, we will work with President Obama and Vice President Biden and their appointees to the National Labor Relations Board to change the rules governing forming a union through administrative action[.]"
None of this was enough to derail the nomination in the HELP Committee, which twice approved Becker (the second time on a party line vote). However, it did generate a "hold" by Senator John McCain (R-AZ) and major opposition in the full Senate. This meant that 60 votes would be needed to achieve cloture and move the nomination forward. Even after Senator Scott Brown's election in Massachusetts broke Democrats' filibuster-proof majority, unions thought there was a route to victory: push a cloture vote through just prior to Senator Brown's swearing in on February 11. However, this last-minute gambit failed. Citing the Becker nomination as one justification, Senator Brown requested to be sworn in early and was in attendance for the cloture vote. In the end, Brown could have kept to his original schedule - two Democrats crossed party lines to vote against the nominee and five Democrats were absent, leaving the vote count at just 52-33.
The outcome of the vote led to immediate calls for a recess appointment in order to solve a "crisis" at the NLRB. As the AFL-CIO put it, the rejection of Becker left the Board "hobbled by vacancies." Though overstated, the labor federation had a point: there are only two members currently serving on what should be a five-member Board and there are questions about the legitimacy of the 500 or so decisions issued by these two members (the Supreme Court will decide this summer if two members constitute a legal quorum).
Yet a recess appointment is not needed to deal with vacancies, or to ensure the legitimacy of Board decisions. There are three individuals currently nominated to serve on the NLRB. Two of them, Mark Gaston Pearce and Brian Hayes, have aroused no controversy and were unanimously approved by the HELP committee months ago. They could clear the full Senate with no difficulty were it not for one hurdle: Senate leadership has shackled them to Becker. While the White House has complained about "stalling tactics" on its nominees, there has yet to be any talk of decoupling Pearce and Hayes from Becker, allowing for their almost immediate confirmation.
If the Senate and the administration want to move nominees and end any questions about an appropriate quorum on the NLRB, the solution is readily at hand - confirm the two non-controversial appointments and nominate a new candidate for the third vacant seat. There are numerous candidates who would be acceptable to labor but whose views of the NLRA fit within the mainstream of modern political thought. Should the President select a nominee along the lines of Pearce and Hayes, he would find little difficulty in securing Senate approval.
The bi-partisan rejection of Becker on February 9 means that labor's Plan B for Card Check has fallen short. There is no reason, however, why the prospect of a fully staffed NRLB needs to be dragged down along with it.