Becker Hysteria and Union Avoidance

Much has been written about the recent recess appointments made by President Obama (thus, bypassing the Senate approval ordinarily required). This was a tactic also used by President Bush when deemed necessary to push an appointee through when one or two senators had put a mysterious “hold” on a nomination or several of them. The most controversial of Obama’s recess appointments is Craig Becker to the National Labor Relations Board.

Becker is legitimately viewed as a union sympathizer. It’s believed that with Becker in place, the NLRB will become pro-union in its decisions. It should be remembered, of course, that President Obama is a pro-union. There’s nothing unlawful with a Republican hold being placed on a nominee (despite the Democrats having a 59-41 majority in the Senate), just as there’s nothing unlawful with the President avoiding the hold by making a recess appointment.

Organized labor had a lot to do with Obama’s election. Unions expected much more out of the President than he’s been able to deliver. Everyone expected this administration to be pro-labor and to have a pro-labor NLRB. It seems to me, therefore, that all the hand-wringing over Becker is a bit overdone. I represent employers. I believe employer-employee relations are handled better without a union. I also believe, however, that when an employer ends up with a union, it’s deserved 99% of the time. An employer will have much more to do with whether a labor union gets its foot in the door by the way employees are treated than by anything Craig Becker does.

That said, it’s nonetheless important for all employers to do some serious planning now that organized labor has a friendly NLRB. One of my colleagues at Miller and Martin has prepared a good memo on the way forward.