By Thomas Ferraro and Kevin Drawbaugh
(Reuters) - President Barack Obama's pick of a former union lawyer to be the top prosecutor at the National Labor Relations Board narrowly cleared a Republican procedural hurdle on Tuesday and headed toward near-certain confirmation.
The vote to end debate on the nomination of Richard Griffin was 62-37, two more than the needed 60. It was not immediately clear when the Senate confirmation vote would be held, but it could be later in the day.
While the battle over Griffin neared an end, a wider struggle over the NLRB and the power of the presidency remained to be played out before the U.S. Supreme Court.
Until a court ruling last January against the White House, Griffin served for a year on the NLRB as a contested Obama appointee. Before that, he was general counsel for the International Union of Operating Engineers.
Griffin was tapped on August 2 by Obama to be NLRB general counsel.
The board - which oversees union elections and polices unfair labor practices - has long been a point of friction between pro-union Democrats and anti-union Republicans.
The five-member board of the NLRB makes its ultimate case determinations, but the general counsel plays a critical role as a gatekeeper, investigating alleged labor violations and deciding which cases should be prosecuted.
Republican Senator Lamar Alexander of Tennessee declared his opposition to Griffin, saying, "I'm concerned about the direction of the NLRB as an advocate more than an umpire.
"I do not believe his presence as general counsel will improve the situation," Alexander said.
Democratic Senator Tom Harkin, chair of the Senate Labor Committee, which approved the Griffin nomination, hailed the nominee and his knowledge of labor laws.
"Mr. Griffin is exceptionally well qualified," Harkin said. "I have no doubt he will do an outstanding job of enforcing our nation's labor laws for workers, unions and employers."
In January 2012, when the Senate was technically in session but not conducting business, Obama appointed Griffin and Sharon Block as NLRB board members.
Objections from Republicans led to a deal later in which Obama withdrew Griffin's and Block's nominations to the board, opening the way for Senate confirmation of other board members seen by Republicans as more moderate.
Those confirmations gave the NLRB its first full slate of board members in a decade. The board's actions in the interim, however, have fallen under a cloud of legal uncertainty.
The Supreme Court agreed in June to hear the case of NLRB v. Noel Canning at the request of the administration. The court is expected to hear oral arguments sometime during its current term, which began this month and will run to June.
The administration went to the high court after a federal appeals court in Washington, D.C., ruled in January that the NLRB did not have a quorum when it ruled against Noel Canning, a bottling company, because three of the five sitting members were not valid appointments. The board needs three members to have a quorum. The ruling cast into doubt hundreds of NLRB decisions.
Obama's so-called "recess appointments" of the three members that were judged invalid took place on January 4, 2012.
Presidents from both parties have used recess appointment authority over the years when facing difficulties winning Senate approval of nominees. The appeals court ruling severely curtailed the scope of the recess appointment power.
Noel Canning, backed by the U.S. Chamber of Commerce, had argued that an NLRB ruling for the International Brotherhood of Teamsters, in a disagreement over failed contract negotiations, could not be enforced due to the recess appointment issue.
Other appeals courts, including one in Richmond, Virginia, in July, have issued similar rulings finding the recess appointments invalid.
(Editing by Dan Grebler)