Statement of Michael B. Enzi: Cloture Vote on the Nomination of Craig Becker for the National Labor Relations Board

Mr. President, I rise to oppose cloture on the nomination of Craig Becker to be a Member of the National Labor Relations Board.  My colleagues know it is very unusual to have a cloture vote on a HELP Committee nominee, but this will be the second in as many weeks.  In fact, these two nominees are the only HELP nominations that I have opposed.  Over 40 HELP nominees have been swiftly confirmed after appropriate consideration this Congress, but these two nominees are problematic, and instead of withdrawing the nomination as has been done in previous administrations, the majority is attempting to force them through.  

Craig Becker was first nominated last July, and controversy surrounding his nomination has only grown since then.    A review of decades of writings by Mr. Becker have revealed that he has advocated for the most radical theories of labor law, pursuing policies such as mandatory unionization where an employee would choose which union to join, not whether to join a union; and questioning whether an employer has a right to any involvement at all in unionization questions in his workplace.  In addition to his writings, Mr. Becker has spent the majority of his career serving as counsel to the two largest labor organizations in America, which has raised questions about his ability to fairly adjudicate cases involving those unions. 

On these issues and others, members of the HELP Committee raised a number of serious concerns.  It has been cited as a negative that Republicans on the committee submitted hundreds of written questions to Mr. Becker, and it is certainly true that we did ask a lot of questions.  Last year, Mr. Becker answered 276 questions for the record, and following his hearing this month, he was sent more than one hundred more.   The fact that we have submitted over 400 questions and, after three rounds of questions, still do not feel we have gotten definitive answers, is merely another sign of the deep concerns about this nominee.    Last week the Chairman noted Mr. Becker has faced more questions than Supreme Court Justice Sonia Sotomayor.  I am not sure I understand the relevance of this fact.  I have yet to find the constituent who is urging us to ask fewer questions of our nominees to positions of high public trust.  Furthermore, if a nominee garners a greater level of public scrutiny and a larger-than-usual volume of questions -- we should ask “Why?”   This unique scrutiny should be a signal that the individual has raised a great level of concern and controversy.  A nominee as controversial as Craig Becker should not go forward, and for that reason I will oppose cloture today. 

The Health Education Labor and Pensions Committee has had other nominees who, right or wrong, became controversial.  Some of those occurred while I was Chairman.  Yet not once did I force through a nominee on a party-line cloture vote.  We have faced partisan opposition for nominees for Surgeon General, the Food and Drug Administration, and the Mine Safety and Health Administration (MSHA).  Oftentimes there appeared to be very little basis for that opposition to my side of the aisle.  But because of the strong opposition, the nominees were not confirmed.  In the two final years of the last Administration, the Majority Leader held pro-forma sessions to prevent recess appointments.  And, now the Majority in their control of the calendar has taken the last two weeks to try to jam through partisan, controversial nominees while the public is seeking solutions to the many economic problems facing our nation.

I’d like to point out that there is another way.  There are three current vacancies at the NLRB, and the HELP Committee has unanimously approved the President’s other two nominees.  If the Senate wanted to confirm two new members to the Board, it could easily do so today.  One of these nominees, Mark Pearce, is a labor-side attorney who has spent his career representing labor unions.  The other is a Republican nominee with management-side experience in addition to tenures on the staff of the NLRB and, here, in the Senate as my Labor Policy Director, Brian Hayes.  Yet, these nominees did not inspire objections from HELP members on either side of the aisle.  Both Mr. Hayes and Mr. Pearce met with Senators, answered written questions, and convinced us that they were well-qualified and able to be impartial.  Clearly, being linked to interest groups such as labor unions and having opposing policy positions is not disqualifying for nominees before the HELP committee.  The problem with Mr. Becker’s nomination is not that he works for unions, or that he supports policies which many of us oppose.  We have approved dozens of nominees with whom we disagree. The problem is that this nominee has shown in his writings and in his responses to the Committee that his thinking is far outside of the mainstream.  This nominee has failed to convince us that he will not attempt to circumvent Congress and impose Card Check-style measures administratively to tilt the playing field against employers.    

For seven months, Senators have been attempting to address and analyze concerns raised by the employer community and others regarding Mr. Becker’s writings – particularly the potential for radical changes in labor laws he has advocated, and argued can be implemented, without congressional authorization.  We have also heard concerns about the nominee’s position on recusal, since he has spent more than 2 decades working with one of the nation’s two largest labor organizations.  There were additional questions about Mr. Becker’s status as both an employee of a labor union and an advisor to the President’s transition team.  And there were questions about Becker’s possible authorship of Executive Orders in that capacity, one of which limited the information given to employees about their right to refrain from union dues.  Finally, there were concerns about Mr. Becker’s role as SEIU Associate General Counsel and the SEIU’s involvement with the scandals surrounding ACORN and former Illinois Governor Rod Blagojevich.  Senators attempted to address all of these concerns through interviews, written questions, and at a hearing.  However, not all of the concerns were favorably resolved and last Thursday the nomination was reported out on a party-line vote.  I have made numerous attempts to alleviate concerns about Mr. Becker’s stated plans to reinterpret the National Labor Relations Act to limit the ability of employers to participate in the process, or otherwise tilt the playing field unfairly against employers.  However, his answers have been far from reassuring. 

When asked if he would ever support imposing the main provisions of the Card Check bill through regulatory fiat, he left the door open.  He answered that while the statute might be interpreted to not permit the Board to uniformly strip employees of the ability to have secret ballot elections, impose mandatory binding arbitration and raise penalties on employers, if presented with arguments that it would, he would keep an open mind.  He also told me that he believed the Board could impose “quickie elections” – one of the main card check alternatives that has been discussed.  He said that he was open to requiring employers to provide personal contact information for all of their employees to any union that asked.  He also made it clear that he would be open to broadening the use of mandatory bargaining orders in cases where there is no showing that a union has the support of a majority of employees. 

Despite the hundreds of written questions he has answered, Mr. Becker has failed to convince me that he would not enter into the job with a preconceived agenda to unfairly tilt the playing field against employers, altering the delicate balance of current labor law.  The relative freedom from industrial strife that has allowed America to prosper since enactment of the National Labor Relations Act in 1935 is dependent on a balance between the rights of employees to collectively bargain and the right of employers to control their workplace.  It is essential that we not allow that balance to be upended now, in this critical time for our economy.  Our nation is dealing with 9.7 percent unemployment rate, and more than 11 million Americans are drawing unemployment benefits.  Comparative studies have shown that enactment of the Card Check provision will increase unemployment, making the situation only worse.

Because of the Board’s broad and important agenda, we simply cannot take the risk of supporting this nominee.  Two recent developments have given me additional pause in reviewing Mr. Becker’s nomination.

First, despite Mr. Becker’s vague assertions, there have been several recent articles and statements from his own movement that confirm all of our concerns.  In The Nation magazine, a union lawyer wrote that all of Card Check’s provisions and the card check-alternative provisions I discussed earlier can be achieved without congressional authority; and stated this as a reason to confirm Becker.  Former NLRB member William Gould made the same point in an article last year.  And a union official wrote just last week that “if we aren't able to pass the Employee Free Choice Act, we will work with President Obama and Vice President Biden and their appointees to the National Labor Relations Board to change the rules governing forming a union through administrative action.”   Mr. President, there is obviously a high expectation among organized labor constituencies that Mr. Becker can be sent to the National Labor Relations Board to deliver wanted policy changes that cannot be achieved through Congress.  Because he has failed to unequivocally rule out that possibility, I cannot support his nomination.

The second reason that I am demanding a high degree of certainty in his answers is my recent, direct experience with nominees who claim to have no opinions on certain issues and no preconceived agenda, but who, once confirmed, immediately take action on what they claimed to have no preconceived position on.   An example of this is the current situation at the National Mediation Board (NMB). 

Last year the Senate unanimously confirmed two nominees to the National Mediation Board. Some members, including me, specifically asked each of them about their position on changing the way a majority in a unionization election is measured.  In response, both of these nominees testified that they had no pre-conceived agenda to alter rules that have been in place for 75 years.  Yet, practically before the ink had dried on their confirmations, these two nominees began pushing through a regulation that is a wholesale reversal of those rules to tilt the playing field to the benefit of labor unions.  In their haste, the Democratic members of the Board thoroughly disregarded the rights of the single minority member.  The Minority Member was given no notice that an effort to initiate rulemaking was underway and, instead, was given one and a half hours to review the final rule proposal to determine if she would support it.  They even tried to stop her from publishing a dissent to the proposal.  There are strong indications that the two recently confirmed National Mediation Board Members were not forthright with the Senate, and it is clear that they showed no respect for the rights of the Mediation Board minority or regulatory process.  In promising to Senators to keep an open mind going into this decision, these National Mediation Board nominees used the very same language that Mr. Becker uses today. 

Similarly, the President’s nominee for the Occupational Safety and Health Administration faced many concerns from the small business community and others about his possible agenda going into office.  Undoubtedly, the President’s nominee for this position would have some views that I do not agree with, and I fully expect and accept that.  But I sought to form an understanding with him on an issue that has traditionally drawn bipartisan support – compliance assistance programs at OSHA that substitute “gotcha” inspections with advice and guidance to cooperatively create safer workplaces, and save the government money.  When it became clear to me that the premiere compliance assistance program – the Voluntary Protection Program (VPP) -- was being downd I asked the OSHA nominee if he supported compliance programs.  He assured me that he “recognized their great value.”  I asked if he would re-evaluate the decision to down it.  He assured me he would and promised to work with the Committee.  And he was confirmed unanimously.  Yet, when the budget came out last week, it proposed transferring Program staff to another function and eliminating its funding.  Mr. President, this does not meet anyone’s definition of “support.”

Now, Mr. Becker is nominated for a different agency and is a different nominee.  And I certainly do not want to impute the actions of others onto Mr. Becker, but my recent experiences with what nominees say in the confirmation process and how they act once confirmed has forced me to be far more skeptical of vague assurances.

I am also concerned that Mr. Becker’s ethics disclosure paperwork has not been updated with the Office of Government Ethics since July 2009, nor has the ethics agreement been revised since April 2009.   The Administration has pledged support for transparency and accountability, and I, therefore, question their decision to rush this nominee through without a proper ethics review.

Independent boards such as the National Labor Relations Board are entrusted with a great deal of autonomy.  The decisions they hand down and regulations they enforce have a great deal of impact on a very significant portion of our economy, and our nation’s jobs.  In the Senate, it is our responsibility to determine if these nominees can be entrusted with this power, or if they would compromise fairness to grant favors to special interest groups or former employers. 

Late last week, the Senate invoked cloture on Patricia Smith, by a partisan vote of 60-32, jamming thru a controversial nominee who misled the HELP Committee.    Now, to be clear, I have been supportive of nearly all of the nominees who have come before the HELP Committee, and I have worked hard with the Chairman to swiftly confirm qualified nominees and put them in office.  But the Senate has an important responsibility of advice and consent. To regain the trust of the American people, we should demand more accountability from the people we are putting into offices of public trust.  I urge this Administration to find qualified nominees who will enjoy broad support in the Senate, and I have offered my commitment to assist with swift confirmation of these qualified nominees.

For all of the reasons stated above, I will oppose Mr. Becker’s nomination to serve as a Member of the National Labor Relations Board, and urge my colleagues to do the same.

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Craig Orfield (202) 224-6770

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