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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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Becker Appointed To NLRB

The President filled two of the three vacant seats on the NLRB with Democratic nominees Craig Becker and Mark Pearce.  The President cited the need to promote "the basic functioning of government" as the reason for issuing the appointments.  However, he chose not to appoint Republican Brian Hayes, whose uncontroversial nomination has been pending along with those of Becker and Pearce, to fill the remaining vacancy.  As a result, the NLRB is still not fully constituted.
 
By statute the NLRB is to have five members.  Traditionally, three of the members come from the sitting president's political party and the other two are from the other party.  However, the Board has been functioning for more than two years with only two members--its Chairperson Wilma Liebman (Democrat) and member Peter Schaumber (Republican).  The two have decided more than 500 cases.  The authority of the NLRB to decide cases with only two members was the subject of an argument before the U.S. Supreme Court just last week.  All parties to the case agreed that the Board had the statutory authority to act if it had three or more sitting members.

Before leaving Washington for a two-week, post-healthcare debate recess, 41 Senators, all Republicans, wrote the President requesting that he not issue a recess appointment to Mr. Becker.  Twenty business groups, including the U.S. Chamber of Commerce, echoed the sentiments of the Senate Republicans.

Becker's nomination has been hotly contested since it was announced last fall, as a result of what some call his "extreme" views about the union selection process.  Because of that controversy, just before the Christmas 2009 recess, Senator McCain exercised his Senatorial privilege to put Becker's nomination on hold, although Republicans and Democrats indicated that the nominations of both Pearce and Hayes would be approved without significant debate.  However, the President did not seek a vote on Pearce or Hayes at that time.

Mr. Becker will leave his post as counsel for the Service Employees International Union (“SEIU”) to take his seat on the NLRB; he will remain a Board member until his recess appointment runs out at the end of 2011. With a 3-to-1 pro-labor majority and with no particular timetable for action on Mr. Hayes' nomination, the NLRB is poised to reverse numerous decisions made by the Bush appointed Board on a number of controversial issues.

As we have written in this column on several occasions, Mr. Becker's views are of grave concern to many in the business community.  For example, Mr. Becker opposes participation by employers in the process by which employees decide whether to choose union representation.  Becker does not believe that employers should be allowed to express an opinion, provide any relevant information to their employees, or otherwise participate in the process in any way.

It is difficult to tell whether Becker's appointment signals the President's intent to defer action on the so-called Employee Free Choice Act (“EFCA”).  Some will speculate that the appointment indicates a compromise between the President and Andy Stern, who runs the SEIU and has visited the White House more than anyone else in the last year.  Stern is a staunch supporter of both EFCA and his employee, Mr. Becker.  The President and Secretary of Labor Hilda Solis have repeated their support for passage of EFCA.  However, the proposed law, which would eliminate the right of employees to vote on the question of union representation, has been mired in controversy since the President took office.  Like health care reform legislation, it may require the President to muster all forces at his command to get it passed.

Becker has made clear his view that the NLRB can engage in both rule making and rule changing, which could accomplish much of what EFCA is designed to do without Congressional action.  By failing to appoint Hayes, the NLRB now has a decidedly pro-labor majority which could enact sufficient changes to the union selection process to allow the President to avoid the firestorm which would accompany the debate over EFCA. 

Feldblum Appointed To EEOC

The President also announced that he would use recess appointments to fill slots on the EEOC with controversial Georgetown University law professor Chai Feldblum, Jacqueline A. Berrien, Victoria A. Lipnic, and David Lopez. 

The appointment of Feldblum drew immediate criticism from conservative Republicans.  Feldblum, who will be the first openly gay member of the EEOC, is best known for her support of the rights movement for lesbian, gay, bisexual, and transgender (“LGBT”) persons.  She helped craft the Employment Non-Discrimination Act (“ENDA”), which would prohibit discrimination against employees on the basis of sexual orientation or gender identity by civilian non-religious employers with 15 or more employees. 

The EEOC nominees were approved by a Senate committee in early December, but their confirmation vote was put on indefinite hold by Senate Republicans who viewed Feldblum and other Obama nominees as too extreme.  Supporters of the President’s move to exercise the recess appointment option cite the EEOC’s backlog of discrimination claims and the current absence of a quorum needed to effectively address claims.  In a statement issued with the recess appointments, President Obama said, “The United States Senate has the responsibility to approve or disapprove of my nominees.  But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.”

Recess appointments last until the end of the next session of Congress.  The White House announced, however, that the nominees will remain in the Senate for confirmation by regular procedures. 

Although the Committee approved his nomination again, it did so with a 13-10 party line vote. The confirmation vote could take place as early as next week.

Anticipating another hold would be placed on Becker’s nomination,  proponents were pushing hard for a cloture vote before Massachusetts Senator-elect Scott Brown took his seat. However, Brown was sworn in by Vice President Biden shortly after 5 p.m. ET yesterday, ending the Democrats' supermajority and becoming the Republican's "41st vote" on health care.  Late yesterday, a cloture vote petition with seventeen (17) signatures was filed on Becker, and the vote will take place Monday evening. With Brown seated, Becker’s proponents are unlikely to obtain the 60 votes need to override any hold placed on the nomination.

The controversy surrounding the nomination is due principally to Becker’s background, which many believe displays an anti-free-market and pro-union bent. Becker is a labor lawyer who has served as associate general counsel to the Service Employees International Union (SEIU) and the AFL-CIO.  For the past 27 years, Becker has taught and practiced labor law and written articles expressing extremely pro-union, anti-business views.

The Senate HELP Committee received a letter from 23 major trade organizations last week expressing concern that the NLRB would be able to “radically interpret existing labor law should Becker be confirmed.” The Committee received a separate letter from 600 manufacturing employers urging members to oppose the confirmation.

Senator Johnny Isakson (R., Ga.) expressed concern that Becker's writings "have indicated a belief that the NLRB has the power to make some of the dramatic changes in the card-check bill." This legislation would permit unions to bypass secret-ballot elections and instead organize in workplaces by collecting signed cards from workers.

In an attempt to distance himself from his writings, during Tuesday’s hearing, Becker suggested that he doesn't believe the Board could take such a step. "The law is clear that the decision...(of) an alternative route to certification rests with Congress and not the board," Becker said, adding that his writings were "intended to be provocative and to ask fundamental questions in order for scholars and others to re-evaluate."

In a Huffington Post article posted Thursday, February 4, Stewart Acuff, Chief of Staff and Assistant to the President of the Utility Workers Union of America, illustrates these concerns as he states:

The Employee Free Choice Act has the support of a majority of the US Senate. But under the current rules in the Senate you need not a majority -- 50 votes-- but a super-majority of 60 votes to move legislation to where a vote to pass it can even take place. We are very close to the 60 votes we need. 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… 

(emphasis added). 

At Tuesday’s hearing, Senator McCain grilled Becker over whether he would recuse himself from cases before the NLRB involving the SEIU, where Becker most recently worked. Becker said he would recuse himself from cases involving the SEIU for two years; however, he would not commit to doing so in a case mentioned by McCain involving a local chapter of the union.