Despite strong opposition expressed by the National Retail Federation, the Retail Industry Leaders Association, the National Grocers Association, and the National Association of Manufacturers, President Obama has filled two of the three vacancies at the National Labor Relations Board with recess appointments. Joining union-side labor lawyer Mark Pearce is Craig Becker. Becker is a long-time senior lawyer for the Service Employees International Union and has been a staff attorney with the AFL-CIO since 2004. Becker’s appointment has generated enormous controversy. Senate Republicans unanimously joined business groups in opposing the nomination, citing concern that Becker’s views on labor law are outside the historical mainstream. Sen. John McCain (R-Az.) described Becker’s appointment as “clear payback by the Administration to organized labor.”
There has been plenty of speculation about the effect of these appointments on the labor law landscape. Here’s what is known: Becker is a widely published academic, having served a stint as a law professor at UCLA. His writings are highly critical of current interpretations of key provisions of labor law. Becker advocates dramatic changes in the law, particularly in the rules governing union organizing elections. In one article, published in the University of Minnesota Law Review, Becker argued that employers should not have the right to participate in NLRB election proceedings and that the Labor Board should eliminate employers’ right to communicate with their employees during election campaigns. He also advocated that employers should not have the right to challenge either the scope of the proposed unit or the eligibility of individuals who attempt to vote in Board-supervised elections. The biggest concern of Becker’s critics is his view that the Labor Board can implement many of his desired changes without amending the statute.
It also seems likely that Becker will join Board Chairman Liebman in taking a strategic, pro-union approach to the Board’s current case backlog. Because the Board has lacked a quorum since 2007, Chairman Liebman and Member Schaumber have agreed to defer many cases raising important and novel issues. Although the backlog is not large by historical standards, the number of cases that could result in reversals of prior decisions is relatively high. Depending on what happens in the New Process Steel case pending before the Supreme Court, the new Board may have dozens more cases to use as vehicles to push the law in a pro-union.
Perhaps the most important question is whether Becker would try to use selected cases, and/or the Board’s rule-making authority, to initiate changes that mirror the principal objectives of the Employee Free Choice Act. For example, would the Becker-era Board consider itself warranted in certifying a union without an election in a variety of circumstances beyond those currently recognized under the Gissel Packing case?
This much is clear: change is coming at the Labor Board. And there may be a lot of it, even if the Employee Free Choice Act remains stalled in Congress. Both union and non-union employers need to consider the impact of those potential changes. An aggressive Board is likely to use selected cases or rulemaking to implement significant changes that would affect the rights and flexibility of employers operating under collective bargaining agreements. A more pro-union Board may also restrict the ability of employers to use traditional economic tools, including the use of lockouts and hiring replacement workers during a work stoppage.
Only time will tell if Becker’s decisions will justify the critics’ alarm bells. Yet there is substantial reason to think this Board will move substantially in a pro-union direction. The stakes are extraordinarily high for organized labor. The President’s nomination of the Board’s next General Counsel this summer will be another indicator of how aggressively the Administration intends to push the law. As your grandmother probably told you, forewarned is forearmed.
Additional information for this post was provided by Tom Gies in Crowell & Moring’s Washington office and Jeff Pagano in Crowell & Moring’s New York office.
For further discussion of the Becker appointment: