Fox advanced claim that Becker wants to alter current union-election rules

Republican strategist on Fox: Becker wants to forbid employers to “communicate or participate” in union-organizing elections. Discussing Becker's nomination on the March 26 edition of Fox News' America Live, anchor Megyn Kelly asked Republican strategist Justin Sayfie: “Tell us why Becker is so controversial.” Sayfie replied:

SAYFIE: Well, he's controversial because he -- the National Labor Relations Board is supposed to decide disputes between employers and employees, and he has been a scholar who's written quite extensively on labor issues. And one of the things that he believes -- he's stated before in his writings -- is that employers should have no role in union-organizing elections at all. We all know about the card check bill that was proposed earlier this year and that was discussed where there would be no more secret ballots in the union-organizing elections. His previous views would state that the employers wouldn't be allowed to even communicate or participate and to have any role in those elections at all.

KELLY: [Democratic strategist] Mary Anne [Marsh], how do you --

SAYFIE: It's very anti-democratic and anti-free speech.

Becker: “I will be bound by the law,” including employers' “indisputable” right to express views on unionization

Becker's 1993 law review article: Employers “should be stripped of any legally cognizable interest in their employees' election of representatives.” In an article (subscription required) for the February 1993 issue of the Minnesota Law Review, Becker, then an assistant law professor at the University of California-Los Angeles, wrote that “employers should be stripped of any legally cognizable interest in their employees' election of representatives.”

Becker: “I understand that there's a different role that I will have than the one I played as a scholar.” During a February 2 congressional hearing on his nomination (around 51:20), Becker referred to the Minnesota Law Review article and stated that he wrote it in an “attempt to contribute to a scholarly debate and ask questions about the regulation of union elections.” Becker further stated that it “was intended to be provocative and to ask fundamental questions in order for scholars and others to re-evaluate.” Sen. Johnny Isakson (R-GA) then asked whether this statement -- “You completely respect Congress' responsibility in terms of writing the labor laws of the United States and Congress should completely respect the ability of scholars to challenge and discuss in an academic environment the application of those laws” -- was the same as his views. Becker replied:

That is absolutely correct, Senator. I understand that there's a different role that I will have than the one I played as a scholar, and I respect that part of that role is to respect the will of Congress.

Becker: “If I am confirmed ... I will be bound by the law as enacted by Congress.” In response to written questions by members of the Senate Committee on Health, Education, Labor, and Pensions (HELP), Becker explained the difference between a legal scholar and a member of the NLRB. Becker wrote that while scholars “can and often do advocate for changes in existing law,” they “do not have the benefit of or a duty to consider a full and fair presentation of arguments by both sides as takes place in adjudication.” He added:

If I am confirmed as a Member of the NLRB, I will be bound by the law as enacted by Congress. I will also fully respect and apply any applicable precedents of the Supreme Court. I will also respect the prior precedents of the Board itself, consistent with the principle of stare decisis. I would review scholarly and academic work cited by parties to Board proceedings or otherwise brought to my attention. They would, of course, be given no controlling weight of any sort.

Becker: Employers have a “legitimate interest” and “indisputable” “right” to express views on unionization. During his February 2 congressional hearing, Becker addressed critics' views that, in Isakson's words, he has “stated that the NLRB is not required to, quote, 'permit the employer to be an active participant either favoring or opposing or even obstructing such an election,' referring to union elections.” Replying to Isakson's question on whether he “favor[s] the NLRB limiting employers' involvement in the election process as it currently operates,” Becker replied:

The current law clearly provides a right to employers to express their view, not only the National Labor Relations Act, but the First Amendment of the United States Constitution. It's clear that employers have a legitimate interest and have a right, which is indisputable, to express their views on the question of whether their employees should unionize. So, nothing in that article, if that's what you're referring to, or others in my writing, should be construed to suggest that in any way I think that employers don't have a right to freely express their views on the question of unionization.

In response to written questions from Sen. Orrin Hatch (R-UT), Becker reiterated his view that “the current law clearly protects employers' ability to express their views on the question of whether their employees should vote to be represented by a labor organization.”