Hunton Employment & Labor Perspectives

The Wall Street Journal calls him “labor’s biggest weapon.”  His nomination to the National Labor Relations Board prompted Senator John McCain to refer to him as “probably the most controversial nominee that I have seen in a long time.”  When his nomination stalled in the Senate after a heated partisan debate, President Obama was forced to make a rare recess appointment to reserve his position on the Board.

So why is Craig Becker such a controversial figure?  Much of the controversy stems from a 1993 Minnesota Law Review article Becker wrote, entitled “Democracy in the Workplace: Union Representation Elections and Federal Labor Law,” while Becker was a UCLA law professor.  In his article, Becker argued that current standards governing union elections should be scrapped in order to severely limit the role of employers in the union representation election process.

Under existing Board standards, employers are afforded certain “free speech” and procedural rights in the union election process.  For instance, an employer may insist upon a secret ballot election.  An employer may participate as a party in pre-election and post-election hearings to determine such issues as who is entitled to vote, the size of the bargaining unit, and when and where the election will be held.  During an election campaign, an employer has the right to speak freely about unionism in general, and about the union in particular, even in strong negative terms, as long as the speech does not include any threat of reprisal or promise of benefit.  Following an election, an employer may challenge the election result before the Board and the courts.

None of this sits well with Becker.  According to his law review article, Becker would like to see strict limitations placed on each of these employer rights, essentially removing employer participation and free speech from the union election process.

In justifying his proposed reforms, Becker distinguishes union elections from political elections, and employers from political candidates, based on what he sees as an economic inequality between employers and workers.  According to Becker, completely removing employer influence in union elections is critical to restoring what he calls “industrial democracy” in the workplace.

Some caution that Becker’s article was published nearly two decades ago as a young law professor, and his view may have tempered over time.  Nonetheless, employers should take heed from his views.  Becker was appointed to the Board on March 27, 2010, and will remain in his position at least through 2011.  The Board now consists of three pro-labor members and just one pro-business member.  With majority control of the Board, Becker and his pro-labor colleagues can easily reshape the existing election standards with little effort.

When he appeared for his confirmation before the Senate, Becker tried to calm critics by stating that his views as an academic would not be the same as his views as a member of the Board.  Skeptics, however, fear that Becker’s law review article, as well as his extensive experience vigorously representing organized labor, suggests a more realistic assessment that “what you see is what you get” with Becker.  Accordingly, employers should be aware that democracy in the workplace may well be on the way − “union style.”

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