Becker Appointed to NLRB

Well outside of the mainstream of labor law

Over the weekend, the Obama administration announced 15 recess appointments, among them that of Craig Becker to the National Labor Relations Board, the five-member body that interprets and enforces federal labor law.

Becker’s appointment is problematic because his views are well outside of the mainstream of labor law. In a wide-ranging University of Minnesota Law Review article published in February 1993, Craig Becker distorted the notion of “industrial democracy” to an extent seldom seen even in academia.

The article covers 40 pages and is not easy to summarize, but it’s not too much of an oversimplification to say that Becker starts with an extremely cramped and naïve view of political campaigns, which he then applies to the workplace in an astonishingly crude manner. This leads him to conclude that employers have no compelling interest in union representation votes and hence have few rights in union elections because they are not involved as voters or as candidates — as if third parties like unions, businesses and PACs aren’t involved in political campaigns, and as if a company’s competitiveness will not be affected by the outcome of a unionization vote. Becker's thinking would prohibit employers from observing the conduct of the vote or challenging union rules violations.

Industrial democracy — the idea that workplace disputes over representation or terms of employment should be resolved by the mass of workers through majority rule rather than through an open market — is itself full of complications. Ultimately, a workplace is an economic arrangement, not a polity, which is why Mackinac Center analysts have long supported reforms, like right-to-work, that restore economic freedom to workers. But if we are to treat the workplace as political rather than as an economic arrangement, its politics ought to be fully democratic, respecting the rights of all interested parties to speak.

To this point, there have been no indications that Becker has moderated his view of industrial democracy. As a member of the National Labor Relations Board, Becker will be in a position to wreak much damage on employers and ultimately employees as well, but his powers are limited by the case-by-case decision-making process of the Board, and the limited tenure of a recess appointee; unless the Senate reapproves him, his term ends in December 2011 rather than 2014. Congress should take no action that leaves Becker on the board any longer than absolutely necessary.