President Bypasses Congress And Announces Recess Appointment Of Craig Becker And Mark Gaston Pearce To NLRB

After months of often rancorous debate, President Obama announced on March 27 the recess appointments of labor attorneys Craig Becker and Mark Gaston Pearce to fill two vacancies on the NLRB.  The decision to bypass Congress and make the recess appointments, a power conferred by the Constitution which allows the president to temporarily fill vacancies in the executive branch, means Becker and Pearce can serve on the Board until the end of 2011 when the Senate finishes its next term.  It also resolves, at least for now, the GOP’s efforts to block Becker’s appointment to the Board.  

Becker’s appointment has been hotly contested by business groups because of concern that he will pursue a personal (pro-union) agenda at the Board.  Becker has served as associate general counsel to both the SEIU and the AFL-CIO.  He is known for controversial statements made in law review articles such as, “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.”  Business groups and Republicans are apprehensive that Becker will attempt to circumvent Congress to make labor laws more union-friendly.  A particular concern is that Becker and the other pro-labor members of the Board may try to implement aspects of the Employee Free Choice Act, a bill currently stalled in the Senate.

President Obama now must nominate a Republican to fill the final vacancy on the Board.  This would give the Democrats a 3-2 majority.  The Board has been operating with just two members since January 2008.  During that period, the two-member Board has issued decisions in over 600 cases in which they were able to agree.  A case pending before the Supreme Court this term could determine the validity of those decisions.

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