Fox's Kelly distorts Becker's record to claim he believes “employers must sit silent” during union elections

Kelly: “Becker thinks that ... employers must sit silent” during union elections. From the March 30 edition of Fox News' America Live:

KELLY: Small and big business alike are concerning -- new concerns about President Obama's pick for a key labor post. Craig Becker, now appointed to the National Labor Relations Board, one of President Obama's recessed appointments making -- that he made last week while Congress was out of session. And here are a few of his key positions on things. Becker thinks that employers should not be involved in any union elections. In other words, the unions can make their case, but the employers must sit silent.

The previous week, a GOP strategist made a similar claim to Kelly. Discussing Becker's nomination on the March 26 edition of America Live, Kelly asked Republican strategist Justin Sayfie: “Tell us why Becker is so controversial.” Sayfie replied, in part, “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.”

In fact, Becker testified that he would be bound by current law. 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: Under current law, 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 Sen. Johnny Isakson's (R-GA) 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 stated:

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.”

Fox's Kelly distorts Becker's record to claim he may “forc[e] card check on employers”

Kelly: Congress “toyed with” but rejected card check proposal, but Becker may be open to “forcing card check on employers.” From the March 30 edition of America Live:

MARK MIX (National Right to Work Committee): You know, he and Wilma Liebman, who's a former Teamster lawyer and is now the chairman of the National Labor Relations Board, have basically said they can do card check without any statutory authority.

KELLY: OK, wait, card check, explain what card check is.

MIX: I'm sorry, Megyn, I don't want to get into lexicon. Card check is a mechanism for certifying unions as bargaining agents for all employees. Under current law, workers are entitled to a secret-ballot election in order to determine whether or not they want to be part of a union. Under -- in Craig Becker's world and in Wilma Liebman's world, that secret-ballot election would no longer exist. In fact, they think that card check -

KELLY: And this is something that Congress toyed with but they didn't have the support for doing that, for mandating sort of the open ballot instead of the secret ballot, but my understanding is Craig Becker doesn't necessarily think that that's a deal breaker to -- forcing card check on employers.

The previous week, the GOP strategist had related Becker's position to “card check.” On March 26, Sayfie compared Becker's position to card check, telling Kelly: “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.”

In fact, Becker testified that the question of whether to alter rules for unionization “rests with Congress, not with the board.” During his Senate testimony, Becker testified: “Section 9 of the Act, in two distinct ways, makes clear that Congress has intended that a secret ballot election be precondition for certification of the union as a representative of the unit of employees.” He later added: “So the law is clear that the decision as to whether a alternative route to certification should be created rests with Congress, not with the board.” From Becker's February 2 congressional testimony:

SEN. TOM HARKIN (D-IA): Some of your critics have suggested that you are coming to the board with an agenda and that you intend to implement card check -- administratively requiring the board to certify a union as employees select a bargaining representative on the basis of signed authorization cards rather than a secret-ballot election.

Now, I have noted that, in your responses to written questions for the record, from my Republican colleagues that you have refuted this claim multiple times, explaining that the card check process proposed in the Employee Free Choice Act would require an act of Congress. Can you provide more detail on how the National Labor Relations Act constrains the board's ability to implement the card check certification process administratively?

BECKER: Thank you for the opportunity to address that question, Senator Harkin. The reason the Employee Free Choice Act has been introduced in Congress and the reason that question is before the Congress and not the board is that the current Act clearly precludes certification in the absence of a secret-ballot election.

Section 9 of the Act in two distinct ways makes clear that Congress has intended that a secret ballot election be preconditioned for certification of the union as a representative of the unit of employees. But first, it so provides explicitly -- that is, it provides that the board shall certify the results of a secret ballot election. Moreover, it provides that employers, should they be confronted with a demand for recognition, based on evidence of majority support, for example, by signed authorization cards, may petition for a secret ballot election.

So, the law is clear that the decision as to whether a alternative route to certification should be created rests with Congress, not with the board.