Executive Session

Floor Speech

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Mr. HARKIN. Madam President, with only half an hour to go, we are here today to consider two things, but I think most important--and what is on everyone's mind now--is the nomination of Harold Craig Becker to serve as a member of the National Labor Relations Board.

I first wish to thank my colleague from Ohio for a very poignant and pointed and very clear kind of laying out of what this is really all about. So I thank Senator BROWN for that.

While I am always proud to discuss the accomplishments of a highly qualified nominee such as Mr. Becker, it is unfortunate we got to this point. Last year, we had an agreement with the Republicans on the HELP Committee that we would move Mr. Becker's nomination as a package, along with the other two pending nominees for the Board, one of whom is a Republican. Well, what happened is, at the end of the year, under the rules of the Senate, one Senator on the Republican side objected to having Mr. Becker continue on the calendar. It is clearly their right, but they did that, and so it went back to the White House and then came back to us.

I was asked, as the chairman of the committee, to have a hearing on Mr. Becker. We haven't had a hearing on a nominee for the NLRB since 1985. We had a hearing for someone to be chairman, but just for a member, not since 1985. Since that time, we have always worked together in a bipartisan fashion to have a package. When there is a Republican President, it is usually two Republicans and one Democrat. When there is a Democratic President, it is usually two Democrats and one Republican. But we have never had any hearings on this.

I didn't have to have a hearing on Mr. Becker, but I decided to bend over backward and say: Look, OK, fine, let's have a hearing on Mr. Becker. I could have had a hearing with all three of them. I could have had the Republican up there too. Maybe we could have given him 400 questions. But I don't like to play those games.

So we had a hearing, and Mr. Becker came. I thought he presented himself extremely well, answered all the questions, and then we moved ahead on the nomination. But we had that package before, and that package was supported on a bipartisan basis. But once Mr. Becker got separated from the package by the actions of one Republican Senator, as I just mentioned, well, now it is OK to move two of them but not Mr. Becker. Well, I find that disconcerting. I find it very disconcerting. That agreement has now been abandoned. It is too bad because there are many other important ways we could be using our time in the Senate rather than on just a routine nomination.

That is not to say the work of the NLRB is not important. It is critical, especially in these troubled and turbulent times. The NLRB is a small agency, but its mission is large. Listen to the words of the National Labor Relations Act that sets up the NLRB:

The NLRB's mission is to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of full freedom of association.

Let me say that again:

..... to encourage the practice and procedure of collective bargaining.

That doesn't say the NLRB is just supposed to sit back and say: Well, we don't care whether someone is unionized or not unionized; we don't care whether someone is able to use collective bargaining. That is not the law of the land. Read the law. They are to encourage the practice and procedure of collective bargaining. So when I hear people get up and say that someone on the Board is going to be pro-union or pro-collective bargaining, I say: Well, that is kind of in keeping with the very words that establish the National Labor Relations Board.

In today's challenging economy, when workers are vulnerable, worrying about their future, it is critically important to have strong leadership on the Board that understands its mandate. I believe very strongly in the mission of the NLRB, and I have a deep respect and admiration for the dedicated people who work there. But I have made no secret of the fact that I am troubled by some aspects of the Board's recent performance.

In recent years, the Board is not doing all it can to inform workers of their rights or to assess appropriate penalties for repeat violators of our labor laws. And that is not to mention the excessive delays at the Board, because we know justice delayed is justice denied in many cases.

There is no real penalty for violating workers' rights. In the last 4 years, the median time to process an unfair labor practice charge at the Board has averaged about 782 days. That is more than 2 years. The median time between the petition for an election and the time when the Board certifies the results of a disputed election is 308 days. What does this mean? It means that if someone is exercising his or her legal right to help organize a union and the employer fires that person, which is a violation of the National Labor Relations Act, and that employee then files a case with the NLRB, it takes over 2 years to get to it. Well, that person is fired. What does that person do? Suppose that person--he or she--is married; they have a couple of kids and they need that income, so they have to get another job. They have to get another job. Now 2 years have gone by, and the National Labor Relations Board finds in favor of the employee who was wrongly fired. What does the employer have to do? The employer has to pay back wages minus any other wages that employee made during that intervening time. Well, if that employee was lucky enough to get a job that paid as well, that means the employer pays nothing--nothing. So is it any wonder employers feel they can just fire people willy-nilly for exercising their right to form a union, when there is really no penalty?

That is what is happening today. It is a serious problem, and we have to put this agency back on track. They have to close down that amount of time. I am confident Craig Becker can be an important part of that effort. He is one of the preeminent labor law thinkers in the United States and, I might add, a proud son of the State of Iowa, born and raised in Iowa. His father was a professor at the university. He has taught labor law at some of our finest law schools, including Georgetown, UCLA, and the University of Chicago, and he has authored numerous articles on labor and employment issues. He is also a skilled litigator who has advocated for workers' interests in the highest courts of this land. He has argued cases in virtually every court of appeals and before the U.S. Supreme Court. I have met with him and spoken with him at length, and I know he will be an invaluable addition to the NLRB. He is an expert on the law, he knows the Board, and he brings a tremendous depth of experience to this important position.

His impressive accomplishments have earned the respect of his colleagues in the bar and his colleagues in the academy. This committee has received several letters of recommendation from management-side attorneys--people who have litigated against Mr. Becker as adversaries--praising his virtues and his potential as a Board member. This chart reflects the comments of one such attorney:

Over the years, I have worked with Mr. Becker on a number of complex issues and cases. Although we were both aggressive advocates for our respective clients and their positions, we were always able to have an open dialogue. I believe that Mr. Becker always took the time to understand the issues from the employer's side, and was willing to work creatively toward amicable resolutions of the issues. Based on my many experiences, I believe that Mr. Becker's integrity is exceptional, as is his knowledge of labor law, and he will be fair, hard-working, and an asset to the NLRB Board.

That is a quote from an attorney who represents management.

Another one said:

I have read of the concerns expressed by some that Mr. Becker would prove ``doctrinaire'' and/or biased toward unions in his application of the NLRA. It is my honest opinion, based on firsthand experience dealing with him, that these concerns are completely unfounded. On the contrary, I am convinced that Mr. Becker would demonstrate fairness, integrity, sound judgment, and an abiding respect for all the Congressionally mandated rights of employers, unions, and employees alike. I respectfully urge you to support his confirmation.

Madam President, I ask unanimous consent to have printed in the RECORD both of the letters from which I have just quoted, along with other letters and an endorsement from more than 60 law professors.

There being no objection, the material was ordered to be printed in the Record

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Mr. HARKIN. As these records show, those who know Mr. Becker the best all agree the President could not have made a better choice.

Unfortunately, Mr. Becker's nomination has been delayed for months on end due to criticisms that are based on misinformation and misleading descriptions of his views. Mr. Becker has gone to great lengths to dispel those concerns and set the record straight. The first time his nomination was considered by this committee last year, he answered 282 written questions from committee Republicans. He also said he would meet with any Senator who expressed an interest to personally explain his views. Only two asked to meet with him. This year, he testified before the HELP Committee, as I mentioned earlier, and answered 158 additional questions. To put this in perspective, Justice Sotomayor, seeking a lifetime appointment on the Supreme Court, only had 220 questions submitted to her.

While this exhaustive vetting process should have alleviated any concerns about Mr. Becker's nomination, it appears there is still a lot of misinformation going around, so I would like to take this opportunity to set the record straight once and for all--not that I think what I am about to say or the letters and things I will point to will change any Republican minds. It seems as though their minds are made up en bloc that they are going to oppose Mr. Becker, just as they opposed Patricia Smith. But I think it is important for the general public to get the facts and to understand what this is all about.

First and foremost, critics have suggested Mr. Becker would come to the Board with an agenda and that he would try to implement the Employee Free Choice Act by administrative fiat.

As you are all aware, I am a supporter of the Employee Free Choice Act, as is President Obama. He campaigned on it. I hope to see it passed by Congress. I look forward to the debate. I hope it is signed into law by the President. But I have no illusions that those important changes can somehow be accomplished administratively, and neither does Craig Becker. He has clearly and consistently explained on numerous occasions that all three major reforms in the Employee Free Choice Act--the card check, binding arbitration for first contracts, and increased penalties for violations of the law--cannot be accomplished without a change in the statute. As we all know, statutes can only be amended by those of us elected to Congress, not by appointees to the NLRB. Mr. Becker was unequivocal in his responses on this point.

Let's take a look at what Mr. Becker says and not what others say about him, not what others would like him to do. We heard a lot about that on Patricia Smith a week ago, on what others said, but let's take a look at what Mr. Becker has to say.

On the issue of card check, he states:

The reason the Employee Free Choice Act has been introduced in Congress and the reason that question is before 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.

So, again, what Mr. Becker has said is that the Board can't change that.

On binding arbitration, he said:

The second section [of EFCA] establishes procedures for mediation and, if necessary, binding arbitration in circumstances where a union or employer engaged in bargaining for a first contract are unable to reach agreement. Action by Congress would also be required to implement these procedures.

So on the second part of the Employee Free Choice Act, Mr. Becker says that only Congress can change it.

Finally, in discussing the new penalties about which I spoke a little bit ago, Mr. Becker says:

The third and final section of EFCA would establish civil penalties and a treble backpay remedy for certain unfair labor practices. I do not believe the Board has authority to award double or triple backpay as a remedy for a violation of Section 8(a)(3) without congressional action nor do I believe that section 10 currently vests in the Board the authority to impose the penalties discussed above.

Well, I don't think he could have been any clearer in his views on this issue.

Earlier, we had some discussion by the Senator from Georgia and also my colleague from Wyoming about the National Mediation Board and how two people got on the Mediation Board and immediately overturned 75 years of law.

What you never heard was that the National Mediation Board acted within their rights. No one is saying they did something to violate a law. They acted within the purview of the authority they have. That is not the same case with the NLRB. They do not have this authority. Second, I think it is important, since people listened to this about the National Mediation Board, to clear up one thing. Here is what they did. For 75 years they have said basically in these types of elections, if someone doesn't vote it is considered a ``no'' vote. Imagine that. If you don't vote it is a ``no'' vote. Now they say that you only have to have 51 percent of those voting to have an affirmative vote. Who is going to dispute that? That is what we do in bond elections in this country, that is what we do in referendums, school board elections, and even elections for the Senate.

Think about this. What if you said if you don't vote that is a ``no'' vote. Nowhere else in this country do we say that. If you don't vote, it should not be counted yes and it should not be counted no. The National Mediation Board simply applied the general rule of elections we follow in this country.

Mr. Becker has also received criticism based on his academic writings. Opponents of his nomination have suggested that he supports radical changes in the law that would require workers to join unions against their will, or take away the free speech rights of employers. These wild assertions have no basis in reality, and Mr. Becker has gone to great pains to rebut these mischaracterizations of his academic views.

For example on the issue of mandatory unionism, Mr. Becker has explained in response to a question from Senator BURR that: ``The Act vests in employees the right to self-organization and to form, join, or assist labor organizations and the right to refrain from doing any and all of such activities with the limited exception provided in section 8(a)(3) as modified by section 14(b). If I am confirmed, I will faithfully apply those provisions of the law.'' And again, in response to a question from Senator Roberts, he stated without reservation that: ``I believe workers should have a choice of whether or not to join a union.''

Similarly, in discussing allegations that he supports eliminating employer free speech rights, Mr. Becker has responded: ``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 . . . my writing should be construed to suggest that in any way I think that employers don't have a right to clearly express their views on the question of unionization.'' That was in response to a question by Senator ISAKSON.

I fail to see why these direct and unequivocal responses do not alleviate my colleagues' concerns. I don't know what more his critics are looking for.

Evidently they are more interested in looking at what other people have to say about him than what Mr. Becker says himself.

Finally, some of my colleagues seem to have problems----

Mr. LEAHY. Will the Senator yield for a question?

Mr. HARKIN. Yes.

Mr. LEAHY. Madam President, we have several Senators who wish to speak on the first vote that is coming up this afternoon, the Greenaway nomination. Is the Senator going to give us any time? Because our time is also being used by him right now. I was wondering if at some point we might have time to speak on the Greenaway nomination.

Mr. HARKIN. I say to my friend, I thought we had 45 minutes on our side for the nomination of Mr. Becker.

Mr. LEAHY. No.

Mr. HARKIN. I am using that time.

Mr. LEAHY. Madam President, my understanding is that time was to be used for both Becker and Greenaway. I was wondering, since Greenaway is the first vote we are going to come to, whether we will have time on that.

The PRESIDING OFFICER. The time is incurred on both matters.

Mr. HARKIN. I believed, under the information that I had, 45 minutes out of 90 minutes that was evenly split on Mr. Becker. I have been waiting for a long time to speak on Mr. Becker. I see no reason why we couldn't ask for consent to move the vote back a little bit if people want to. I wouldn't object to that.

The PRESIDING OFFICER. The Senator from Iowa has the floor.

Mr. LEAHY. Madam President, if the Senator would yield further, the reason I was here is I was told the time, 45 minutes, was to be used for both nominations. If the Senator from Iowa wishes to use all the time for his nomination, I also point out that Judge Greenaway has been waiting since last June for his vote. But certainly the Senator has the floor. I understand he has the floor and I understand he can take all the time and not leave any time to the other Senators who are supposed to receive time.

The PRESIDING OFFICER. The Democrats retain 7 minutes 40 seconds in debate.

The Senator from Iowa is recognized.

Mr. HARKIN. Madam President, I do not want to keep anyone from speaking. I was under a misimpression. I did not know I did not have my 45 minutes. I apologize. This was not part of my information. I will try to wrap up as rapidly as I can. But I think this is important.

Obviously, Mr. Greenaway seems to have a lot of support. There is no contention about him but there certainly is about Mr. Becker and I want to set the record straight about Mr. Becker.

My colleagues seem to have a problem with Mr. Becker simply because he is a union lawyer and a darned good one. But that should not be a cause for concern. Most labor lawyers devote their time either to labor or representing management. Indeed, since the Board's inception, 23 management attorneys or consultants have served on the Board compared to only 3 who came from a background of representing unions--23 to 3. Now we have someone come from a background of representing unions and now they do not want him on the Board.

Again, these people all came from different backgrounds. I am sure Mr. Becker will approach this with an open mind and impartiality. No one has suggested there is an ethical problem with Mr. Becker's previous employment. He has clearly and unequivocally stated that he will recuse himself from matters that may come before the Board concerning his former employers, the Service Employees International Union and the AFL-CIO, for a period of 2 years. He answered 440 written questions. After months of delay, it is time to move on, not only because Mr. Becker is so abundantly qualified but also because the NLRB has important work to do. We owe it to hard-working Americans to act quickly on these nominations. I hope all my colleagues will join me in supporting Mr. Becker's nomination so we can complete this process and let him start his important work.

I yield the floor.

I apologize to my good friend from Vermont but as he can tell, I needed to get the record straight on Mr. Becker.

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