By Edwin S. Hopson
The U.S. Senate on December 24, 2009, refused to confirm the nomination of Craig Becker whom President Obama nominated to be a member of the National Labor Relations Board. Becker, a Democrat and associate general counsel for the Service Employees International Union and AFL-CIO, was one of a three-person package nominated on July 9, 2009, to fill out the five-member board. On October 21, 2009, the Senate’s Health, Employment, Labor and Pensions Committee had approved the three nominees by a vote of 15 to 8 as to Mr. Becker and unanimously as to the other two, Brian Hayes and Mark Pearce. Mr. Hayes, a Republican, and Mr. Pearce, a Democrat, were not voted on by the Senate but, along with many other nominees, were passed to the next session by unanimous consent.
After the Committee vote in October, Senator John McCain announced he had put a “hold” on Mr. Becker’s nomination in light of a number of positions taken by Mr. Becker about which others, including the U.S. Chamber of Commerce, had complained.
The December 24 action by the Senate as to Mr. Becker was based on its rules (XXXI, par. 6) which provide:
“Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President.”
Therefore, the President’s options are to either do a recess appointment of Mr. Becker to the NLRB or resubmit his nomination to the Senate during the next session.