[Congressional Record Volume 140, Number 21 (Wednesday, March 2, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: March 2, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF WILLIAM B. GOULD IV, OF CALIFORNIA, TO BE A MEMBER OF THE
NATIONAL LABOR RELATIONS BOARD
The PRESIDING OFFICER. Under the previous order, the Senate will now
go into executive session to consider Calendar item 476, which the
clerk will report.
The bill clerk read the nomination of William B. Gould IV, of
California, to be a member of the National Labor Relations Board.
The Senate proceeded to consider the nomination.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. METZENBAUM. Madam President, I rise today in strong support of
the nomination of Prof. William Gould, to be Chairman of the National
Labor Relations Board.
For 13 years, the NLRB has withered under consecutive Republican
administrations. Seldom has the Board operated with a full five
members. Cases have piled up, preventing the timely resolution of labor
disputes, and frustrating workers' efforts to enforce their rights.
Today, the Board is in desperate need of leadership, and President
Clinton could not have made a better choice as his nominee.
As a matter of fact, Professor Gould stands out as perhaps the most
qualified nominee in the history of the NLRB. Bill Gould has spent a
lifetime thinking about and addressing the needs of America's working
men and women. In his long and successful career, he has practiced
labor law from every angle. He has represented workers. He has
represented management. He has represented the National Labor Relations
Board, working for both Republican and Democratic Members. Clearly,
this is a man with an unprecedented breadth of experience in the field
of labor relations.
Professor Gould stands out as a respected academic, having taught
labor law courses at Stanford University since 1972. The academic
community, in a letter signed by 75 labor law professors, says Bill
Gould is ``an outstanding leader in labor relations * * * uniquely
qualified for this critical position.''
Professor Gould stands out as a prolific writer, having authored 6
books and more than 60 law review articles. Strangely, the National
Association of Manufacturers says its opposition to Professor Gould's
nomination ``is premised on [his] extensive writings.'' I have
difficulty in comprehending how anybody can be opposed to somebody in
view of their extensive writings. Perhaps NAM would prefer a nominee
who had never read the National Labor Relations Act, or one who had
never given thought to the relationship between workers and employers.
NAM says it opposes this nomination because in some of his writings
Professor Gould has advocated changes in our Federal labor laws. But is
not that the very purpose of legal academia, to assess how our laws are
working and offer thoughtful suggestions as to how they might work
better?
Professor Gould's views defy simple categorization as either
``liberal'' or ``conservative.'' Sometimes he has advocated changes
that would strengthen workers' rights. Sometimes he has advocated
changes that would strengthen employers' rights. If there is one
constant in Bill Gould's writings, it is his dedication to improving
the state of labor relations in this country. And if one thing is
clear, it is the absurdity of challenging this man's qualifications.
Professor Gould stands out as an arbitrator with 30 years experience
and tremendous respect from lawyers representing both labor and
management. He has resolved over 200 labor-management disputes,
displaying a judicial temperament and an unquestioned ability to build
consensus. These are qualities that will serve him well as Chairman of
the NLRB.
For all of these reasons, Bill Gould stands out as an extraordinary
nominee. But most of all, Bill Gould stands out because of the
remarkable breadth of support for his nomination. As we all know,
labor-management relations is often a highly adversarial, pitched
battle between employer and worker advocates. That is what makes the
unanimous outpouring of support for Professor Gould all the more
remarkable. All of those who have worked with him--his peers, his
fellow practitioners, judges, law school deans, present and former NLRB
members, and representatives of management and labor who have won and
lost cases before him--have uniformly praised his intellect, his
fairness, and his integrity.
Let me quote just one of these supporters, Elliott Azoff, a
management labor lawyer from a prominent Cleveland firm:
Bill understands the need for a neutral to not only be fair
but to create a pervasive atmosphere of impartiality. * * *
Bill will enforce the National Labor Relations Act as it is
written and leave amending of the statute, if that is needed,
to Congress, and critiquing of the statute to the rest of us.
Elliott Azoff's views confirm that people who know Bill Gould
recognize the difference between reforms he discusses in his academic
writings, and his ability as NLRB Chair to enforce the law as it is
written. They recognize that his many years of reflection on our labor
laws are an asset, not a liability. His extensive record as an
arbitrator confirms his neutrality and his strict adherence to existing
law, even when deciding issues on which he has written as an academic.
There simply is no basis to question Professor Gould's integrity or
qualifications for this position.
Bill Gould will seek to enforce the law in a fair and impartial
manner, promoting labor relations stability and cooperation. I have
heard the concerns raised by some of my colleagues about Professor
Gould's nomination. Frankly, I am appalled that some of my colleagues
would stoop so low to attack a man who is so universally respected.
Bill Gould is a man of uncompromising integrity, and I urge my
colleagues to support his nomination to chair the National Labor
Relations Board.
I understand that not everyone is in agreement, and I respect the
views of those who are in disagreement. But I say categorically I think
that Bill Gould is the man for the job and I hope the Senate sees fit
to confirm him.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mrs. KASSEBAUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Kansas.
Mrs. KASSEBAUM. Madam President, I rise in opposition to the
nomination of William Gould to be Chairman of the National Labor
Relations Board. Certainly, William Gould brings high credentials to
this position. However, I cannot support this nominee for this
position, which wields such significant power over the lives of
American workers and businesses.
This is a nominee who has lent support over the years for radical
change in labor law. I cannot support a nominee for a position that
holds significant power and authority over the labor laws of our land
and a nominee who subscribes to an agenda that will undermine the very
legal structure his agency will oversee.
For years, Professor Gould has called for a major overhaul of our
Federal labor laws. His writings have been very critical of existing
law, as well as numerous Board and Supreme Court precedents. He has, in
fact, become one of the Nation's leading champions of labor law reform.
The National Labor Relations Board is charged with the interpretation
and enforcement of our Nation's labor laws. It is not and should not
become a forum for radical labor law reform.
Professor Gould's recent book ``Agenda For Reform'' lays out a
blueprint for drastically changing Federal labor law. For example, most
disturbing is Professor Gould's desire to do away with secret ballot
elections when workers are asked to decide whether or not they want to
join a union. He would replace secret ballot elections by having
workers simply sign cards indicating their support.
Secret ballot elections are an essential part of our democracy, and
working men and women are no less deserving of this basic democratic
right. Workers should never be subjected to coercion in making the
decision about joining a union.
Professor Gould will also expand the ability of unions to punish
workers who want to continue working during a strike. I am deeply
concerned about a nominee who would place the rights of unions, and
their ability to strike, over the rights of individual workers who
simply want to earn a living.
Professor Gould also believes that permanent replacement workers
should be prohibited during an economic strike.
We all know current law permits such permanent replacements. If the
law is changed, as Professor Gould would have it, we will see many more
strikes and our effort to encourage labor and management cooperation
will take a giant step backward.
Professor Gould also advocates double and triple back pay damage
awards to remedy unfair labor practice violations. This so-called
reform dates back to the labor law reform ideas of the late 1970's,
which were flatly rejected by this body. The increase in damage awards
would expand litigation and encourage even further division in the
workplace.
Professor Gould would expand an employer's duty to disclose
confidential information to unions, far in excess of what current law
requires. He advocates increasing access to private property for union
organizers who are not employees, in direct contradiction to the
Supreme Court's interpretation of the law.
I could go on, because these are only a few of the changes that
Professor Gould advocates. Now, it is one thing to advocate. It is
another to serve as the Chairman of the National Labor Relations Board.
Madam President, I am sure Professor Gould is sincere in his stated
hope that he will distinguish these previously expressed views from his
role as NLRB Chairman. But such strongly held views must shape and
influence the decisions of one who serves in this role. As NLRB
Chairman, he has a great opportunity to interpret the law and that is
the crux of my objection and my concern.
In fact, Professor Gould once wrote that ``new appointments to the
Board from 1989 onward can change the law.'' Are we to believe that
Professor Gould will refrain from exercising the power to reform labor
law--that he himself acknowledges the Board can do--when he so clearly
stated his belief in the need for such comprehensive reform?
I do not believe any of us want to return to a period of labor
unrest, of strikes and of work stoppages and excessive and protracted
litigation, all of which will resurface if we have a one-sided and
activist National Labor Relations Board.
At this juncture, our economy cannot afford the disruption and
uncertainty that will result if the Board is used as a platform for
labor law reform. Both employers and labor unions must have confidence
in the impartiality of the Board in order for it to function
effectively.
Unfortunately, Madam President, I think that Professor Gould has
failed to instill that confidence.
The business community is unified in its opposition to the nominee.
The National Association of Manufacturers, the Labor Policy
Association, the Society of Human Resource Management, the Chamber of
Commerce, and the National Federation of Independent Businesses have
all expressed their opposition to Professor Gould's nomination.
Collectively, they represent an overwhelming majority of the businesses
in America. Some of these organizations have never taken a position on
a Board nominee, but feel very strongly about Professor Gould. Other
business organizations have expressed their opposition as well, and I
would ask unanimous consent that these letters of opposition be made a
part of the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
National Association
of Manufacturers,
Washington, DC, October 6, 1993.
Hon. Nancy Landon Kassebaum,
Ranking Republican, Committee on Labor and Human Resources,
U.S. Senate, Washington, DC.
Dear Senator Kassebaum: In earlier communications, the
National Association of Manufacturers expressed serious
reservations regarding the nomination of William B. Gould IV
to the National Labor Relations Board but withheld final
judgment pending his confirmation hearing.
On the basis of the hearing, together with a thorough
review of his writings, the NAM has concluded Professor
Gould's confirmation would not be in the best interest of our
members and urges the rejection of his nomination. We believe
that employer-employee relations are at a critical juncture
where the substantial rewriting or reinterpretation of labor
law would be most disruptive, not only to those relationships
but the Nation we well.
The NAM's opposition is premised on Professor Gould's
extensive writings, most recently espoused in his book Agenda
for Reform, that advocate repeal or substantial change of the
law he would be obligated to uphold and administer if
confirmed. The NAM appreciates the distinction made by
Professor Gould at the hearing between himself as a professor
and as a member of the NLRB, i.e., that in the latter role he
would enforce the law as written. We are concerned, however,
that distancing oneself from such deeply rooted philosophical
views is easier said than done.
Our position on this nomination turns also on the fact that
the President will this year nominate candidates for two
other Board seats and the very critical position of General
Counsel. We are aware of possible candidates for the General
Counsel and one of the NLRB seats, both of whose sympathies
rest with the trade unions. While it is the President's
prerogative to make appointments consistent with his own
philosophy, we would hope such considerations would provide
at least some balance among Board members and the General
Counsel.
Accordingly, the NAM urges that the nomination of Professor
Gould to be a member and chairman of the National Labor
Relations Board be rejected.
Sincerely,
Jerry J. Jasinowski.
____
October 19, 1993.
Hon. Judd Gregg,
Senate Russell Office Building,
Washington, DC.
Dear Senator Gregg: I am a member of the Board of Directors
of the U.S. Chamber of Commerce and the Chairman of its Labor
Relations Committee. The Committee has reviewed many of the
articles and books written by Professor William Gould IV, the
nominee for the National Labor Relations Board (NLRB). That
review, along with Professor Gould's testimony at the
Committee's October 1, 1993 hearing, leads us to conclude
that he should not be a member of the NLRB. Accordingly, we
respectfully urge that his confirmation not be reported out
of committee.
Professor Gould's statements and writings reflect a
predisposition toward destruction of many established and
fundamental principles of this nation's labor policy, as well
as a return to the adversarial and litigious processes of the
past. His views conflict with and contravene the evolution of
U.S. labor policy which now encourages organized labor and
management voluntarily to form long-term, non-adversarial
relationships of significant mutual benefit. As Chairman of
the NLRB, Professor Gould will hinder that positive
evolution.
The United States must do everything possible to position
itself to play a leadership role in the ever-expanding global
economic market. U.S. labor policy encourages conciliation,
cooperation, and dispute avoidance or resolution, and should
not be changed in the wholesale manner recommended by
Professor Gould. Members of the NLRB must be dedicated to
upholding the rights of individual workers, facilitating the
cooperation essential to growth and survival in a highly
competitive global economy, and striving for the legal and
administrative consistency that discourages conflict and
litigation.
I would like to bring to your attention some of Professor
Gould's statements which clearly demonstrate his intent to
alter long-established national labor policies. The
attachment shows that Professor Gould will use his authority
as NLRB Chairman to effectuate the radical suggestions
described in his writings.
In his statement to the Committee on October 1, Professor
Gould tried to allay concerns about his radical
recommendations for revision of existing labor policy. He
noted that in his writings he had extensively expressed his
views ``on the shape that labor policy should take if
Congress should amend the National Labor Relations Act or
other statutes.'' (Emphasis added.) He added that his
responsibility was a Board member would be ``concerned
solely with the interpretation of the law as it is
presently written.'' (Emphasis in original.)
These statements may be misleading. True, he advocates
fundamental changes to the National Labor Relations Act (the
Act), many of which would require legislation. However, his
writings also clearly show a desire and intent to change the
Act through NLRB interpretation and application of the
statute. Congress need not amend the Act for Professor Gould,
through his Chairmanship of the NLRB, to revamp many well-
established principles of labor law. We firmly believe, based
on his own statements (discussed in the attachment), that he
will attempt to make the many substantial labor policy
changes he recommends.
Recently, Professor Gould claimed the Act is in ``complete
disarray.'' To correct this, he recommended fundamental
changes in well-established NLRB and Supreme Court
principles. For Example, he recommends issuance of a Board
order requiring an employer to bargain with a union, even
though the union does not have the support of a majority of
employees. The board has rejected this approach, as have the
federal courts. He also recommends broadening the scope of
collective bargaining to many topics not now the subject of
negotiations between a union and employer (e.g., advertising,
decisions on future investments, product design, and any
other employer decision that has even an ``attenuated''
impact on employment).
Professor Gould's testimony on October 1 is inconsistent
with prior statements he made concerning NLRB and court
interpretations of the law. This could be disregarded but for
the awesome power and discretion vested in the NLRB.
Interpreting Congressional intent, the Supreme Court has
consistently held that the Board has broad authority to
change the national labor policy as well as the National
Labor Relations Act through its interpretations. According to
the Court, the Board's interpretation of the law is entitled
to ``considerable deference.'' It is therefore easy for
Professor Gould to assuage concerns about his intent to
refrain from making labor law changes by saying he will be
concerned ``solely with the interpretation of the law as it
is presently written.'' The Act allows for NLRB changes in
the interpretation and application of the law.
In light of Professor Gould's recommendations to make
substantial changes to previous interpretations of the Act,
and his clearly expressed doubts about the wisdom of Supreme
Court decisions, it must be concluded that he will, through
his leadership of the NLRB, attempt to rewrite labor policy.
Nothing in his statement or testimony suggests otherwise.
Professor Gould's testimony, coupled with his numerous
written statements over the past several years, establish
beyond doubt that he has little regard for existing labor
policy formulated over several decades by the NLRB and the
Supreme Court, and that he intends to make many substantial
changes to the nation's labor policy during his chairmanship.
The fundamental principle of the Act and the nation's
established labor policy is that employees have the right to
decide whether they will engage in union activity and select
which, if any, union they wish to represent them. Relying on
essential individual and collective rights--democratic
procedures and majority rule--employees' desires regarding
union representation are ascertained by objective evidence,
usually an NLRB secret-ballot election among employees. Those
elections determine whether an employer must bargain with a
union as the representative of its employees. Fair and
democratic efforts to determine employee desires must not be
considered mere ``roadblocks'' by the person charged with
enforcing the law. According to Professor Gould, such
elections are mere ``roadblocks.''
For the above reasons we urge the Committee not to confirm
the nomination of Professor Gould.
We request that this letter be included into the official
committee record.
Sincerely,
William A. Stone.
____
National Federation of
Independent Business,
Washington, DC, November 17, 1993.
Hon. Ted Kennedy,
U.S. Senate,
Washington, DC.
Dear Senator Kennedy: On behalf of the over 600,000 members
of the National Federation of Independent Business (NFIB) I
am writing to express opposition to the nomination of William
B. Gould IV to chairman of the National Labor Relations Board
(NLRB). Historically, NFIB has resisted expressing viewpoints
in the NLRB confirmation process. However, upon careful
review of Professor Gould's well-publicized views on labor
management relations we believe that this nomination warrants
our input.
NFIB's opposition to Professor Gould's nomination is based
on his extensive writings, specifically his views on labor
law as expressed in his recently published book Agenda for
Reform. Professor Gould recommends significant changes to the
National Labor Relations Act, the same law he will be
responsible for upholding as a member of the NLRB. Not only
do his writings call for the erosion of many long-held
employer rights, but in many cases they reflect a strong
union bias.
NFIB members have long opposed drastic revisions in labor
law, such as accelerated ``quickie'' union elections or union
certification without secret ballot elections, which would
make it easier for unions to organize and would reduce the
opportunity for workers to make an informed and uncoerced
choice on the important issue of union representation.
Professor Gould's writings illustrate his contrary views to
established precedents on these and other labor law
``reforms.'' Although during his confirmation hearings
Professor Gould attempted to discount these views as the
writings of an academic, NFIB is concerned that as chair of
the NLRB he will use broad interpretations of the law to move
in the direction of his labor law reform ``agenda'' through
administrative adjudication and rule making.
In a time when workplace relations in this country are in
transition, small business owners across the country feel
that any reinterpretation of labor law aimed solely at
institutionalizing organized labor's views would be
disruptive and detrimental to the relationship that currently
exists between employers and employees.
Thus, NFIB urges the Senate to reject the nomination of
Professor William B. Gould IV to be a member and chairman of
the National Labor Relations Board.
Sincerely,
John J. Motley,
Vice President, Federal Governmental Affairs.
____
Society for Human
Resource Management,
October 8, 1993.
Hon. Edward M. Kennedy,
Chairman, Committee on Labor and Human Resources, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: On behalf of the Society for Human
Resource Management (SHRM) it is with regret that I must
inform you of our opposition to the nomination of Professor
William B. Gould IV to the National Labor Relations Board
(NLRB). SHRM is the leading voice of the human resource
profession, representing the interests of more than 55,000
professional and student members from around the world.
Our decision to oppose this nomination follows a review of
Professor Gould's writings by members of SHRM's national
Employee and Labor Relations Committee, including his recent
book Agenda for Reform. This is the first time that SHRM has
opposed a presidential nomination.
SHRM believes that the views expressed by Professor Gould
in his writings, which include advocating dramatic changes in
the nation's labor laws, raise a serious question as to
whether the Professor would attempt to re-write the law
through his decisions.
Professor Gould's assertion during his confirmation hearing
that he will be ``concerned solely with the interpretation of
law as it is presently written'', is not helpful. Employers
must comply with the statutory provisions of our nation's
labor laws as well as NLRB and court interpretations of those
laws. Given his authority to interpret the law as NLRB
Chairman, Professor Gould would have the power to
dramatically change employer obligations under the statute.
And because we disagree with many of the Professor's views on
the proper formulation of this nation's labor laws, we must
oppose his nomination.
This year, the President will have the opportunity to
nominate two additional candidates to the National Labor
Relations Board, as well as a candidate for the position for
General Counsel. We hope that these candidates are
representatives of a more balanced philosophy regarding
labor-management issues.
SHRM urges that the nomination of Professor Gould to the
National Labor Relations Board be rejected.
Sincerely,
Michael R. Losey, SPHR,
President and CEO.
Mrs. KASSEBAUM. I would just like to read one letter, submitted by
the chamber of commerce, which concluded after extensive review of his
writings that ``Professor Gould's intent is fundamentally to revamp
well-established, effective national labor relations policies and
principles through the decisions of the NLRB in a manner that will lead
to increasing adversarial labor-management relations, severely reduced
competitiveness, and erosion of employee rights.''
I am greatly troubled by the lack of confidence that exists in the
business community for this nominee, a lack of confidence which I
share. And I believe it is this confidence and this trust that is
called into question with this nomination, not the extent of Professor
Gould's knowledge of labor law and not the fact that he has written
extensively. What is really at issue is the lack of confidence in
Professor Gould to interpret the law rather than to attempt to move the
Board in a very different direction.
I hope that my colleagues would share these reservations and vote
against this nominee.
Madam President, I should like to ask that the Record be held open
for additional statements until the close of business today, although
we will be voting, I believe, at 4 o'clock, or thereabouts. There is an
hour's agreed time. But I would like unanimous consent to hold the
Record open for additional statements until the close of business
today.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Chair will remind the Senator there is 2 hours of debate equally
divided.
Mrs. KASSEBAUM. I thank the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. KENNEDY addressed the Chair.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Just an inquiry. What is the time agreement?
The PRESIDING OFFICER. The Senator from Massachusetts controls 53
minutes; the Senator from Kansas controls 51 minutes.
Mr. KENNEDY. I do not believe we, the supporters of Mr. Gould, will
use all of the time. And I imagine that although if we used all the
time under the time agreement we would vote at 5, I believe we will
vote earlier. We will try and give the Members sufficient notice. But I
hope we would be able to vote closer to 4 than 5, so the Members ought
to understand that.
Madam President, I yield such time as I might use.
Madam President, the Senate will vote today on President Clinton's
nominees to the National Labor Relations Board. The Committee on Labor
and Human Resources has favorably reported four nominations: William
Gould as chairman, Margaret Browning and Charles Cohen as members of
the board, and Fred Feinstein as general counsel.
I urge the Senate to support their confirmation.
The National Labor Relations Board is a small agency, but its mission
is a large one--not only for the parties appearing before it, but also
for the country as a whole. It is the Agency we depend on to implement
the rules that bring stability to our system of labor-management
relations.
The four persons nominated by President Clinton will bring to that
Agency a wealth of practical experience in dealing with labor-
management issues, and a high level of expertise that has rarely, if
ever, been matched in the 60-year history of the Board.
In selecting these nominees, the President has also chosen
individuals who will bring a balanced and varied set of perspectives to
their work. Margaret Browning is a highly respected labor law
practitioner from Philadelphia whose practice has primarily involved
the representation of unions and individual workers. Charles Cohen is a
highly regarded management attorney.
Fred Feinstein, the nominee for general counsel, has worked on labor-
management issues from a legislative perspective for 17 years as
counsel to the House Labor-Management Subcommittee. Both Mr. Feinstein
and Mr. Cohen also have prior experience as attorneys working for the
Board itself.
Bill Gould, the President's nominee for chairman of the Board, has
the distinction of having represented every one of the principal
interests that come before the Board: employers, unions, individual
workers, and the NLRB itself.
Despite Professor Gould's superb qualifications for the position of
chairman, an opposition campaign has been mounted to try to defeat his
nomination. It is ironic that he should be the target of such a
campaign, because he may well be the best qualified chairman ever
nominated to the Board. Let me review for a moment his background and
credentials.
As a practicing attorney early in his career, Mr. Gould worked for 1
year as a lawyer for the United Auto Workers, then joined the staff of
the NLRB for 2 years. He served there on the staffs of Chairman Frank
McCulloch and member Howard Jenkins, both of whom were originally
appointed by President Kennedy and who served long and respected terms
at the Board.
On leaving the Board, Mr. Gould joined the management firm of Battle,
Fowler, Stokes & Kheel in New York City, where he represented employers
for 3 years. More recently, he has taken time from his academic duties
to represent individual workers on a pro bono basis in a series of
significant race discrimination suits against both unions and
employers.
In addition to this extensive and extraordinary background as a
practitioner of labor law, Professor Gould for the past 25 years has
had a brilliant career as a professor at Stanford Law School. He has
taught labor law to thousands of law students and has authored 6 books
and more than 60 scholarly articles on the subject.
His work has established him as a preeminent expert on a wide variety
of labor law-management relations issues--which is why more than 75
faculty members in this discipline from universities and law schools
around the country have joined in supporting his nomination. They call
him an outstanding leader in labor relations who is uniquely qualified
for this critical position as Chairman of the NLRB.
At the same time, during the past 30 years, Professor Gould has
earned a nationwide reputation as a fair and thoughtful arbitrator. He
has been a member of the prestigious National Academy of Arbitrators
since 1970. He has been selected by management and labor to settle more
than 200 disputes, involving every sector of the economy--including in
recent years, numerous player salary disputes in major league baseball.
In every way, his selection by President Clinton is a home run, and the
Nation is fortunate that a person of Professor Gould's ability and
character is willing to accept this call to public service. The test
that President Clinton applied was obviously the test of excellence--
and if the Senate applies that test as well, Professor Gould should be
confirmed by a vote of 100 to 0.
Those who would like to see his nomination defeated have attempted to
characterize Professor Gould as having a bias toward labor that will
prevent him from fairly and impartially carrying out his duties as
Chairman of the NLRB. But his record as an arbitrator refutes any such
claim. According to statistics prepared by the Bureau of National
Affairs, in his published arbitration decisions, Professor Gould upheld
the position of management in 50 percent of the cases, and ruled in
labor's favor in only 30 percent of the cases. The rest were split
decisions. That record is hardly the kind of record that indicates bias
toward labor.
In fact, Professor Gould's experience in arbitration is probably the
best indicator of how he will perform in the role of chairman of the
National Labor Relations Board. As an arbitrator, he has been called
upon to interpret and apply the law of the workplace, as set forth in
the terms of collective bargaining agreements, to the facts of
particular cases. His record has earned him the respect and widespread
support of the parties who have selected him, and also of his peers.
The high regard in which he is held by those who know his work in the
arbitration field is reflected in the many letters the committee has
received from fellow arbitrators praising Professor Gould's integrity
and reputation for impartiality. The comments of Arthur Stark, a past
president of the prestigious National Academy of Arbitrators, are
typical:
According to Mr. Stark, Bill Gould as an arbitrator has been
acceptable to both management and labor representatives and has
retained that acceptability over the years. His ability to see and
understand both sides of the complex issues which arise in often hotly
contested disputes is exactly what is required of an NLRB member and
chairman.''
Anthony Sinicropi, another past president of the academy, writes that
Professor Gould enjoys the respect of both the labor and management
community and would steer this historically important governmental
quasi-judicial body in a direction to meet the challenge of today and
tomorrow.
Eva Robins, also a past president of the academy, praises Professor
Gould for his personal integrity, knowledge, and his ethical standards.
Dallas Jones, the current president of the academy, lauds Professor
Gould's judicial temperament and says he will make an outstanding
Chairman of the National Labor Relations Board.
As Professor Gould himself pointed out at his confirmation hearing,
you do not get work as an arbitrator if either labor or management
thinks you are unfair or biased toward one side or the other. Over and
over, both labor and management have placed their trust in Professor
Gould to resolve their disputes. That is the most persuasive evidence
the Senate could have that he will be a fair and impartial Chairman of
the National Labor Relations Board.
In the months since his nomination was announced, the Labor Committee
has received a remarkable outpouring of letters in support of his
confirmation.
And as these letters made clear, Professor Gould is viewed by those
who know him best, and who have dealt with him professionally, as a
responsible, a fair, and a practical person who will promote respect
for the NLRB and the law, and will generate a much needed atmosphere of
evenhandedness in the contentious field of labor management relations.
It is interesting to note--in light of some opponents' claims that
Professor Gould is antibusiness--that some of the highest praise he has
received is contained in more than two dozen letters the committee has
received from representatives of management. Here are typical comments
from letters submitted by leading management attorneys:
[His] reputation in the rough and tumble world of labor
relations is one of impeccable honesty and integrity and his
sense of fair play has produced the highest standard of
impartiality and neutrality in labor affairs.--Arthur B.
Smith, Jr., Murphy, Smith & Polk, Chicago.
[His] reputation for scholastic excellence and objectivity
spans both coasts.--Martin J. Oppenheimer, Poskauer Rose
Goetz & Mendelsohn, New York City.
[Gould] is especially attractive to a management lawyer
because is firmly in the middle ground between labor and
management . . . His reputation for ability, integrity and
fairness is beyond question.--Frederick A. Morgan, San
Francisco, CA.
Bill understands the need for a neutral to not only be fair
but to create a pervasive atmosphere of impartiality . . .
Bill will enforce the National Labor Relations Act as it is
written and leave amending of the statute, if that is needed,
to Congress . . .--Eliot Azoff, Baker & Hostetler, Cleveland.
It is unfortunate that the confirmation of this outstanding nominee
has become embroiled in excessively ideological and partisan arguments
that have little to do with the real challenges that confront the NLRB
in its mandates to apply the labor laws fairly and responsibly to the
realities of a changing economy and new developments in the workplace.
Those on the other side of the aisle who seek reassurance that
Professor Gould is indeed committed to fair and impartial enforcement
of the law can take reassurance from the words of former Republican
Congressman Tom Campbell from California, who served in the House from
1989 to 1993.
Tom Campbell is now a colleague of Bill Gould's at Stanford Law
School, and he has written to all the members of the Labor Committee to
endorse Professor Gould's nomination. He calls Professor Gould ``an
honest man of superb intelligence and integrity.'' As Tom Campbell
writes:
Professor Gould and I do not always agree on labor law
policy. However, I can without the slightest hesitation
testify that he has the deepest respect for the rule of law.
He will carry out the National Labor Relations Act as it has
been interpreted by the courts and as it was enacted by the
Congress. Where, as a policy matter, he may wish the Act to
be interpreted differently than it has been, I am confident
he will proceed in the judicially appropriate fashion . . .
Where the precedent is controlling, I have no doubt Professor
Gould will follow it, even if it means a policy outcome
different from what he might have preferred if he were in a
position to draft the statute. He has a brilliant mind and an
enviable reputation for tolerance of opposing views.
President Clinton has given us an excellent nominee for Chairman of
the National Labor Relations Board. Finally--and this is the icing on
the cake--Bill Gould has a lifelong love of baseball, and in particular
the Boston Red Sox.
I suspect that the Red Sox may be seeing a little more of Bill Gould
in the years ahead--it is a lot easier to get to Fenway Park from
Washington than from Stanford.
In sum, Bill Gould has the rare combination of experience, ability,
independence, impartiality, and judgment to be an outstanding Chairman
of the National Labor Relations Board, and I urge the Senate to confirm
him.
Mrs. KASSEBAUM. Madam President, before I yield, I certainly
appreciate the Senator from Massachusetts wanting to have an additional
fan for the Red Sox. But it is not a question, let me say, of Professor
Gould's honesty or integrity. That is not in question. I think he is
held in high regard by all. But I would like to particularly respond to
the Senator from Massachusetts talking about Professor Gould's role as
an arbitrator. An arbitrator's role is very different from that of the
chairman of the National Labor Relations Board. An arbitrator takes a
very narrow issue and usually, in many ways, splits it in half. I think
that the role of chairman on boards such as the NLRB does allow for
one's policy views to play a role in the decisionmaking process.
Professor Gould himself has acknowledged that.
So I wanted to comment on the difference that exists between the role
of an arbitrator and the role that one would play as chairman of the
NLRB.
I yield whatever time the Senator from South Carolina would like to
have at this time.
Mr. THURMOND. Madam President, I rise today to oppose the nomination
of Mr. William Gould to be the Chairman of the National Labor Relations
Board. Based on the views expressed by Professor Gould in his writings,
his testimony, and his responses to submitted questions, I cannot
support his nomination to be Chairman of the National Labor Relations
Board.
As you know, the National Labor Relations Board is an independent
agency consisting of five members who act primarily as an adjudicatory
body of prevent and remedy unfair labor practices committed by
employers and unions. It is also responsible for conducting secret
ballot elections of employees to determine whether or not they want to
be represented by a labor union.
Madam President, Professor Gould has recently written a book entitled
``Agenda for Reform.'' This ominously titled book does not merely
identify, define, and discuss the issues confronting the existing
relationship between employers and employees. Instead, it vividly
outlines his vision for the future labor relations in America, as he
would like it to be.
For example, Professor Gould states in his book that the decline of
unions ``erodes the fabric of democratic institutions and is thus
profoundly worrisome to all who value pluralism and a system of checks
and balances in the workplace. * * *''
We must question Professor Gould's concern with the decline of unions
in this country. Under our labor relations system, workers have the
right to vote for a union or against a union in their workplace. The
fact that the vast majority of Americans have rejected a unionized work
environment tells me that workers do not place the same value of union
representation as does Professor Gould. In contrast to Professor Gould,
I trust workers themselves to vote as they see fit.
The Congress has established standards under our Federal labor laws
for workers to choose whether they want union representation. I support
those standards. But when those workers exercise their free choice and
reject a union, I think we should respect that choice without
denigrating it.
Professor Gould finds the decline of unions to be worrisome. I hope
that he does not plan on taking it upon himself to redress this
worrisome condition through the National Labor Relations Board.
Madam President, we must also question whether this nominee will
attempt to legislate or define labor policies that are within the
jurisdiction of Congress.
Professor Gould clearly stated during his confirmation hearing that
he would follow congressional intent if he were confirmed to chair the
National Labor Relations Board. However, Professor Gould repeatedly has
written that the National Labor Relations Board has the authority to
make important labor relations policy. In a 1987 edition of the San
Diego Law Review, Professor Gould states that there is an,
* * * obvious but frequently unpalatable truth that federal
labor law, framed as it is in broad ambiguous language
addressing matters about which Congress has been unable to
provide definitive policy judgments, is federal labor policy
defined by the NLRB and ultimately the Supreme Court. The
Court is deeply divided on many aspects of this ongoing
policy debate.
In the Labor Law Journal, in an article entitled ``Fifty Years Under
the NLRA: A Retrospective View,'' Professor Gould stated that ``new
appointments to the Board from 1989 onward can change the law * * *'.
In the Stanford Law Review, he also states the he ``believe(s) the
Board needs to be changed much more than the law--although the law
ought to be strengthened.''
How can Professor Gould claim that he will be impartial, and that he
does not have an agenda for reform when his statements make clear that
he favors changing labor law policy through judicial activism.
Obviously, Professor Gould is a very accomplished labor lawyer. He
has been a Stanford Law School professor for over 20 years. He
impressed members of the Senate Labor Committee with his knowledge of
our Federal labor statutes. However, I remain concerned that he will
use his position on the Board to put into practice the many labor
reform ideas that he has advocated over the years.
Madama President, the National Labor Relations Board is a quasi-
judicial body. Both employers and employees must have confidence in the
impartially of the Board in order for it to function effectively. I
believe the strong held views and positions Professor Gould has
advocated for so long, make a strong case that it will be difficult for
him to act as an interpreter of the law and not an advocate.
Therefore, Madam President, I do not intend to support this
nomination.
The PRESIDING OFFICER. Who yields time?
The Senator from Massachusetts.
Mr. KENNEDY. Madam President, I yield myself such time as I might
take.
Madam President, in my earlier statement, I pointed out the very
strong and enthusiastic support of members of the National Academy of
Arbitrators, a very prestigious group of men and women who are involved
in the field of arbitration. It is highly regarded and respected, and I
quoted from a series of letters our committee has received from both
the current president and several past presidents of the Academy who
all have been very supportive of Professor Gould.
Some question was raised about the relevance of Mr. Gould's
experience as an arbitrator. Is this really a useful measurement in
terms of demonstrating the impartiality of this nominee? And there was
some suggestion that arbitration is really nothing like adjudication of
NLRB cases because all the arbitrator is really doing is splitting the
difference between the two parties.
Of course, if that was all that arbitration was--that the two parties
were divided and the understanding was that the arbitrator was not just
going to take the matter at issue and split the difference, you would
not need an arbitrator. The parties could do that themselves.
The point of arbitration is that when you have a disagreement between
the parties as to how the words of the contract should be applied to
the facts of a particular case, the arbitrator performs that function
of interpreting the contract and applying it to the facts, just as a
judge applies the words of a statute to the facts of a case.
So, Professor Gould's experience and record as an arbitrator is, I
think, reflective not just of the ability, professionalism and
integrity of the nominee, but also his qualifications to serve on the
NLRB.
I would just mention very briefly some of the issues that have been
raised by those who have expressed reservations about Mr. Gould's
confirmation.
One was the issue of the card check, which is a means of determining
the desire of employees to be represented by a union. Of course, the
card check was the primary means by which employees obtained union
recognition prior to 1947. It was completely legal and commonly
utilized. And it is a respected method of determining who then has
majority support for a union in a number of other Western countries,
including Canada.
The assertion that this is a radical idea is something that I would
really question. It was in the 1978 Labor Reform bill. That bill only
failed by a few votes because of a filibuster.
So this concept is something that generally those who are familiar
with labor law reform have some position on. Some support it; others do
not, but it is not a radical idea.
Then there is the issue that has been raised about Professor Gould's
support for legislation to ban the permanent replacement of strikers.
More than 55 Members of the Senate have expressed their view that there
should be a change in current law on this issue. The President of the
United States himself has stated his support for banning the permanent
replacement of strikers, so his position is the same as that of this
nominee. The idea this is evidence of the radical viewpoints of the
nominee I find difficult to accept.
The concept of awarding double back pay to workers who are illegally
discharged for union activities was part of the 1978 labor law reform
bill too. It was debated and considered. It is widely understood and
recognized that there is an anomaly in the fact that in cases of
employment discrimination on the basis of union activity, the illegal
firing of an individual for supporting a union is treated entirely
different than we treat illegal discrimination or firing an individual
on the basis of gender, race, religion, and ethnicity. In those kinds
of discrimination cases, we impose a variety of different penalties on
employers, in addition to back pay. The exception is that where the
discrimination is on the basis of union activity, the only remedy is
back pay.
There is a very substantial body of evidence to suggest that the
penalties for labor law violations are generally considered by many in
management to be just a cost of doing business. The employers know that
if there are certain individuals who are out there trying to organize,
they can fire them and stop the organizing campaign in its tracks.
Since the worst that can happen is that they may be told to rehire the
union supporters later on, after the organizing campaign has been
defeated, and gave them some back pay. Many see that as just a cost of
doing business. It is worth it to the employer to take that risk if it
means they can keep the union out. The view that back pay is not an
effective deterrent to illegal conduct by employers is a very widely
held view.
So the views of Professor Gould that were just criticized here--
really are very much in the mainstream of debate and discussion in
terms of labor law reform.
Just to get back to what has been both the stated position of the
nominee as well as those who support him, it is his strong commitment
as Chairman of the Board to interpret the law as passed by Congress
rather than change the law.
Given the extraordinary comments we have received praising of his
basic integrity, I think that this country will be very favorably
served when his nomination is approved.
I withhold the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mrs. KASSEBAUM. Madam President, I am happy to yield to the Senator
from Wyoming however much time he would like to speak.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. SIMPSON. Madam President, I just want to speak briefly.
Prior to confirming Professor William Gould to be Chairman of the
National Labor Relations Board, which I think we will do momentarily, I
suggest that my colleagues take a very good look at some of his
writings. I have, and I have strong concerns about this nominee.
I have talked with our fine ranking Member, Senator Kassebaum, and
have the deepest respect for her views on things that come before her
areas of jurisdiction. I trust her implicitly.
I have gone into my own examination of material on this person who is
going to be responsible for leading the regulation of collective
bargaining and union organizing activities in the private sector.
I just want to take a few moments just to say that a few weeks before
his nomination William Gould published a book called ``Agenda For
Reform,'' in which he strongly criticized the way the Board has
operated, and described in some great detail how current law,
precedents, and Board procedures should be changed.
I took labor law on the GI bill at Colorado University in the summer
program, and my professor was Archibald Cox, so naturally my
credentials are unimpugnable, and I know either of my colleagues did
not know that, and if Arch Cox were listening he would chuckle about my
work in his class. Arch Cox was a great professor of labor law and
taught me much during that session of summer school.
In looking at what this man is saying, the views he espouses in his
book would take the current balance in labor-management relations and
turn it right up on its ear. His extremist, activist approach to labor
law certainly bothers me, and I know it bothers others. His views are
quite clear and unambiguous. It is virtually impossible to take his
message out of context. That excuse simply will not do this time.
He advocates the elimination of secret ballot elections in which
employees decide the question of union representation, and inserting in
its place signature cards collected by union organizers.
He does not feel that union members should be able to resign from a
union during a strike.
He believes that unions should have complete access to company
financial information at all times.
He believes that unions should be able to organize a company's
management as well as its workers, an extraordinary adventure.
While these are troubling enough, I stumbled across one that really
stood out, and that is Professor Gould has been highly critical of the
Supreme Court's decision in NLRB versus Wooster Division of Borg-Warner
Corp. In this 1959 landmark decision, the Court drew a distinction
between ``mandatory'' and ``permissive'' subjects of collective
bargaining. Employers and unions are required to bargain over mandatory
subjects such as wages, hours, and key conditions of employment. Either
party may insist on its position, and, if necessary, may use economic
force to enforce those demands, such as a strike or lockout.
On the other hand, employers and unions are not required to bargain
over ``permissive'' subjects such as capital investments or
discontinuation of a product and things that do not have to do with the
basic issues of collective bargaining, which is wages, hours, and
conditions of employment. So the parties then can voluntarily
incorporate provisions concerning ``permissive'' subjects into a labor
contract, but neither party is obligated to bargain over such
provisions and neither party may use economic force to insist on these
provisions.
However, Professor Gould advocates eliminating the distinction
between ``mandatory'' and ``permissive'' subjects of bargaining. On
page 178 of his book, ``Agenda for Reform'', he states, ``The
demarcation line between mandatory and non-mandatory subject matter
should be eliminated and the right to bargain on all issues should be
made available to the parties.''
I am concerned with those views because the distinction between
``mandatory'' and ``permissive'' subjects of bargaining is not found in
the National Labor Relations Act itself. Rather, it is a board-created
rule of interpretation that the Supreme Court upheld in Borg-Warner.
The Board can and does revise such rules, and the courts usually defer
if they find the new rule rational and consistent with the act. As the
Supreme Court stated in its NLRB versus Curtin Matheson Scientific
decision, ``a Board rule has precedent even if it represents a
departure from the Board's prior policy.''
Essentially, Professor Gould's position, if it became Board policy,
would tilt current labor law toward permitting more economic strikes by
providing more reasons to strike.
With hundreds of millions of dollars at stake in the Board's decision
on this issue, all parties must be ensured that their views and
arguments are given due consideration. Professor Gould has already
prejudged this critical issue.
I would simply add that the Chairman of the National Labor Relations
Board is not an arbitrator who is there to split the difference in
narrow factual disputes. The NLRB, and particularly its Chairman, have
broad authority and discretion to interpret Federal labor law and shape
its course. It is absolutely essential that both employers and labor
unions have confidence in the impartiality of the Board in order for it
to function effectively. William Gould, in my view, has failed to
instill any part of that confidence.
I thank the Chair.
The PRESIDING OFFICER. Who yields time?
Mrs. KASSEBAUM. Madam President, I am happy to yield as much time as
the Senator from Oklahoma would like.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. NICKLES. Madam President, parliamentary inquiry. How much time is
remaining?
The PRESIDING OFFICER. The Senator from Massachusetts controls 35
minutes. The Senator from Kansas controls 36 minutes and 31 seconds.
Mr. NICKLES. Madam President, I wish to compliment my friend and
colleague, Senator Kassebaum, from Kansas, and also Senator Simpson,
from Wyoming, for their statements.
Madam President, I will oppose this nomination of William Gould as
Chairman of the National Labor Relations Board. I do not do that with a
great deal of joy. I do not like opposing nominations and I have really
opposed very few in my career in the Senate.
But I believe that Professor Gould is one of the Nation's leading
champions of radical labor law reform. I am really surprised that this
administration would name as Chairman of the National Labor Relations
Board someone who has no hesitation whatsoever about giving labor union
rights higher priority than the rights of individual employees and
management.
Madam President, Professor Gould has made clear in his writings his
intent to alter long-established national labor policies. His most
recent book, ``Agenda for Reform''--and I have a copy of that here
today--is a manifesto on how he will redirect labor law for this
country. The book contains several examples of the vision that William
Gould has set forth, which are very troubling to me and should be very
troubling to anybody if they believe in consistency in labor law and if
they consider that this nominee is appointed to be Chairman of the
NLRB.
For instance, the nominee believes that employers should not be
allowed to hire permanent replacement workers during an economic
strike. Gould stated that the Mackay decision, which holds that it is
not an unfair labor practice for an employer to continue operating his
business during a strike by hiring permanent replacements for economic
strikers, is ``badly flawed''. On page 202 in his book, ``Agenda for
Reform,'' he says:
The Court and Congress should not be bound by half-century-
old opinion. As we move toward the twenty-first century, we
should attempt to establish more civilized standards in
labor-management relations, a more competitive and
cooperative environment inextricably tied to such standards,
and an order in which we can compete effectively with
Germany, Japan and other countries.
He said we should not be bound by half-century-old opinions, both the
court and the Congress. So he is more than willing to use the court and
the Congress to change the 50-year-old statute.
Another example is Professor Gould's advocation of the use of
authorization cards, a notoriously unreliable indicator of employees'
desire to join a union, instead of the current process of secret ballot
elections. In addition, Gould recommends expanding the ability of
unions to punish workers who choose to continue to work during a
strike. These are troublesome restrictions of an individual's right to
work at best.
Professor Gould further advocates in ``Agenda for Reform'' allowing
union representation of less than a cohesive group of employees or a
minority group of as little as 20 or 30 percent of employees. He says:
Additionally, the Act (The Labor Relations Act) should be
amended so as to allow nonmajority organizations to represent
employees and to be consulted and share information about
employer decision making that affect employment conditions
where 20 to 30 percent of the employees have petitioned the
Board to this effect. Under such circumstances consultation
and communication should be mandated.
That is on page 141 of the professor's book.
Think of what he just said. He said if 20 or 30 percent of the people
sign a card by petition that that 20 or 30 percent should automatically
have recognition. What about a secret ballot? What about a right for a
majority of the employees? Does that mean somebody can come by and have
an organizational election and walk by and say, ``Please sign the
petition,'' and maybe they do because they do not want to offend the
person, or for whatever; they really have not thought about it.
What about the right to a secret ballot? What about the individual's
rights to really select who should represent them. And should we not
have majority reputation?
The professor advances union resurgence by utilizing OSHA reform. In
the ``Agenda for Reform'' on page 94, Mr. Gould states:
Legislation introduced by Senator Edward Kennedy in 1992
would amend the Occupational Safety and Health Act and
mandate employee committees charged with the responsibility
in the health and safety area. If this legislation is enacted
in the future, another institutional basis for representing
worker interest relating to employment conditions independent
of union majority rule would exist.
Think of that. This is ``another institutional basis for representing
worker interest relating to employment conditions independent of union
majority rule.''
In other words, the majority does not rule. We are going to have a
small group come in, and this is another basis for union representing
workers interests even if they do not have a majority. Wow. I thought
we believed in secret ballots and majority rule.
Professor Gould also advocates controversial changes to the remedies
available to a reinstated employee in instances of unfair labor
practices. Gould favors double or triple backpay awards to be paid by
employers. He also thinks labor reforms should make clear that backpay
remedies are not available to all workers.
Let me rephrase that. He also thinks that labor reforms should be
made clear, that backpay remedies are available to all workers, whether
here in the United States legally or not.
In other words, he favors significant fines and penalties, double and
triple penalties, and they should be available to workers, both legal
and illegal.
Further, Mr. Gould supports expanding employers' duties to disclose
confidential information to the union. He believes there should be
disclosure of information regarding decisionmaking that could
conceivably have an impact on employment conditions, namely investment,
closures, advertising, and basic product decisions.
The Supreme Court has held that the National Labor Relations Board,
and particularly its Chairman, have broad authority and discretion to
interpret and change Federal law through its interpretations.
Therefore, Congress need not amend the National Labor Relations Act to
make major changes in labor policy. I am not so sure I concur with the
Supreme Court's decision, but that is prior decisions.
The use of the National Labor Relations Board as a platform for major
labor law reform will result in uncertainty and disruption, which our
economy cannot afford right now. The Board must exhibit impartiality to
function effectively. I am afraid, with Professor Gould, we do not have
impartiality. I think by his writings he has proved there is not
impartiality.
This nomination is opposed by many. It is opposed by the National
Association of Manufacturers, the Labor Policy Association, the Society
of Human Resource Management--which to my knowledge has never opposed
any Presidential nominee--the Chamber of Commerce, and the National
Federation of Independent Business. They have all expressed their
opposition to this nominee, I think for good reason.
(Mr. KENNEDY assumed the chair.)
Mr. NICKLES. I wish my colleagues had enough time to look at these
writings that are in Professor Gould's own words. If they did, if they
would really look at the statements he has made, I find it hard to see
they could support this nominee. This is not a nominee who is unbiased.
This is not a nominee in my opinion who will be fair and impartial in
making many decisions. And this person is nominated, again, to be
Chairman of the National Labor Relations Board, which is a particularly
powerful position, I am afraid, for advancing his agenda for reform.
I compliment my friend and colleague from Massachusetts who is now
presiding. I understand part of his statement is supporting his
nominee. I notice the nominee supports many pieces of the Senator's
legislation and supports them energetically. But I have a problem when
we have nominees that want to legislate through a board, or through a
commission. Obviously, by some of his writings, he plans to be very
active in advancing his agenda for reform, which I hope my colleagues
will reject when we vote on this nomination.
I urge my colleagues to oppose Mr. Gould for Chairman of the National
Labor Relations Board. I thank my friend from Kansas for yielding me
this time. I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota is recognized.
Mr. WELLSTONE. Mr. President, I rise to support the nomination.
The PRESIDING OFFICER. How much time does the Senator desire?
Mr. WELLSTONE. Mr. President, I think 5 minutes will be just fine.
The PRESIDING OFFICER. The Senator is recognized for 5 minutes.
Mr. WELLSTONE. Mr. President, I rise to support President Clinton's
nomination of Stanford Law School Prof. William B. Gould IV, to be
Chairman of the National Labor Relations Board.
We have heard a number of different comments on the floor, and it is
the Senator's first amendment right to express his or her viewpoint. Do
not think anybody is fooling anybody. We all have different values and
represent, I suppose, different viewpoints.
But the fact of the matter is, Professor Gould by any standard is a
nominee of outstanding achievement, outstanding achievement
representing business, representing labor, and representing government
in labor relations. He is a leading arbitrator and he is a leading
scholar and he has been a leading lawyer. Frankly, I think if you
review his writings--and we have already essentially presented to the
Senate for the Record a range of recommendations from distinguished
lawyers, crossing the broadest spectrum of political opinion in the
United States of America imaginable--what you see is a record of
evenhandedness.
It certainly is true that, by definition, not every Senator will
agree with every view that Mr. Gould has presented in his writing or
presented in his work as a scholar or as a lawyer. On the other hand,
if we were to find such a person--and I do not know that we ever really
can find such a person--we would not find such a person with such a
distinguished career. This is a man who has been enormously successful
in many different, but I think very important, walks of life that
converge to make him a candidate who will probably end up being one of
the great Chairmen of the National Labor Relations Board.
As a former professor, maybe I put more weight on his scholarship.
But it is there for all of us to examine. I certainly am impressed with
the letters of recommendation and the acclaim he has received from very
distinguished lawyers. And I am certainly impressed with the fact that
he has such strong recommendations on all sides, as I said before, from
labor, from management, from government.
Finally, I want to end with a personal note. I did have an
opportunity to be at the Senate Labor and Human Resources Committee
when there were some very, I think, difficult, tough, and fair
questions--including questions raised by the Senator from Kansas. I
deeply respect Senators that ask those tough questions. The Senator
from Kansas is a perfect example of someone who takes this job very
seriously. But I was equally impressed with the knowledge of this man.
I mean, the way in which he handled the questions with grace, his
background, the depth of his knowledge. I do not think we can have a
better candidate.
I certainly hope my colleagues will vote for William Gould. It is
long past time we move forward. I believe what historians will write
about this man, and I feel strongly about this, is that he will go down
in history as a truly evenhanded, highly intelligent, profound thinker,
and I think a truly great Chairman of the National Labor Relations
Board. I certainly hope he will have strong support by my colleagues in
the Senate.
I yield the remainder of my time.
Mr. President, I suggest the absence a quorum.
The PRESIDING OFFICER. Is the request for the time to be charged
equally?
Mr. WELLSTONE. Mr. President, that is correct. I suggest the absence
a quorum and that the time be charged equally to both sides.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER (Mr. Wellstone). The Senator from California.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. I ask I be provided time to speak on behalf of Prof.
William Gould, nominee as Chairman of the National Labor Relations
Board.
The PRESIDING OFFICER. Who yields time?
Mr. KENNEDY. How much time does the Senator require?
Mrs. FEINSTEIN. About 5 to 7 minutes.
Mr. KENNEDY. I yield 7 minutes to the Senator from California.
Mrs. FEINSTEIN. Mr. President, in October of last year I introduced
Professor Gould during his confirmation hearing before the Senate Labor
and Human Resources Committee. And my support for his candidacy is just
as strong now as it was then.
He made clear during his confirmation hearing that he pledged to
uphold congressional intent in his performance as Chair, and I have no
reason to doubt him in this regard.
Like many others in California who know of Professor Gould's work--he
hails from my alma mater, Stanford--I believe he has a balance of
scholarly achievement and practical experience in labor law which
prepare him very well for the challenges of chairing the National Labor
Relations Board.
Having said that, I must also say that to me what seems to be going
on in this debate is really a battle over ideology. And the underlying
question is, what should the National Labor Relations Board be?
In my view, the National Labor Relations Board should be a centrist
board which is reflective and knowledgeable about the needs of working
men and women, and also the needs of the management sector.
There is some good evidence that Bill Gould fills this bill. Let me
share with you a letter that I have received from a management
advocate--not a labor advocate--a management advocate. He is president
of the Pacific Maritime Association. That is an association which
represents maritime management on the west coast. His name is William
Coday. I would like to read this letter, which was written to support
the appointment of William Gould IV, labor law professor at Stanford
Law School as Chair of the NLRB:
I am a member of the Missouri, St. Louis, and American Bar
Associations and a former chairman of the Labor Law Committee
of the St. Louis Bar Association. Since my graduation from
Washington University Law School in 1956, I have represented
management in the field of labor relations and presently
represent the maritime industry on the west coast. I have had
extensive practice before the NLRB throughout these 37 years.
In the labor law field, Bill is a scholar; that is well-
known. Moreover, he is reachable as a person and has a sense
of humor. Speaking as one who has always represented the
management side, I feel we need someone like Bill to lead the
Board back to a more centrist view. In the past decade, the
Board has become so conservative as to forfeit its
credibility to the labor movement. Management interests are,
in turn, jeopardized as we return to a ``law of the jungle''
mentality.
I realize that Bill has been criticized for some of his
writings. This is unfair. All legal scholars have
traditionally opined as to what the law should be in addition
to analyzing what it is.
As a lawyer and a scholar, he knows the difference between
interpreting and effectuating the National Labor Relations
Act, versus the Congress' exclusive role of amending.
Bill Gould is a fine choice for this position. He would
play a lead role in bringing the NLRB back to the stature it
once had. Please support him. Very truly yours, William E.
Coday.
Mr. President, I ask unanimous consent that this letter be printed in
the Congressional Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Pacific Maritime Association,
San Francisco, CA, December 30, 1993.
Hon. Dianne Feinstein,
U.S. Senate,
San Francisco, CA.
Dear Senator Feinstein: This letter is written to support
the appointment of William B. Gould, IV, Labor Law Professor
at Stanford Law School, as Chair of the National Labor
Relations Board (NLRB).
I am a member of the Missouri, St. Louis, and American Bar
Associations and a former Chairman of the Labor Law Committee
of the St. Louis Bar Association. Since my graduation from
Washington University Law School in 1956, I have represented
management in the field of labor relations and presently
represent the Maritime Industry on the West Coast. I have had
extensive practice before the NLRB throughout these 37 years.
In the labor law field, Bill is a scholar; that is well-
known. Moreover, he is reachable as a person and has a sense
of humor. Speaking as one who has always represented the
management side, I feel we need someone like Bill to lead the
Board back to a more centrist view. In the past decade, the
Board has become so conservative as to forfeit its
credibility to the labor movement. Management interests are,
in turn, jeopardized as we return to a ``law of the jungle''
mentality.
I realize that Bill has been criticized for some of his
writings. This is unfair. All legal scholars have
traditionally opined as to what the law should be in addition
to analyzing what it is. As a lawyer and a scholar, he knows
the difference between interpreting and effectuating the
National Labor Relation's act versus the Congress' exclusive
role of amending.
Bill Gould is a fine choice for this position. He would
play a lead role in bringing the NLRB back to the stature it
once had. Please support him.
Very truly yours,
William E. Coday.
Mrs. FEINSTEIN. Mr. President, I would like to also quote from a
letter by a Prof. Herman Levy of Santa Clara University School of Law,
and William H. Simon, professor, Stanford School of Law, that was
printed in the Los Angeles Times. I think it puts to rest some of the
charges that we have heard on the floor.
The letter points out that Bill Gould has become the object of
``extremist attacks that frequently distort the record.'' It goes on to
say that ``Paul Craig Roberts' Column Right, on October 31, was an
unsavory example of that.''
Then the letter points out that:
Roberts begins by asserting that Gould's views are
``similar'' to those of a judge whom he states is an
apologist for black criminals. Reminding us of the Willie
Horton rhetoric of the 1988 Presidential campaign, Roberts
suggests that Gould, who would be the first black Chairman of
the National Labor Relations Board in its nearly 60 years of
existence, is eccentric or radical.
Roberts could not be more off the mark. As a law professor
and arbitrator, who has rendered a majority of awards in
favor of employers----
A majority of awards in favor of employers.
Gould has been consistently viewed as both moderate and
impartial.
Roberts says that Gould will ``* * * restrain management's
ability to communicate with the work force prior to a union
certification vote.'' In fact, in Gould's recent book----
Which has been widely quoted on this floor.
``Agenda for Reform,'' he has written that labor law reform
should expand employer free speech rights in union
organization efforts--not limit them.
This is the problem with quoting from a book. You can take it out of
context. Authors say many different things in a book. Here is something
which is diametrically opposed which Mr. Gould has said which has not
been quoted on this floor.
The letter goes on:
Roberts further asserts that Gould favors compelling all
workers to accept union representation where only a minority
favor it. In fact, the proposal to which Roberts refers quite
clearly applied to ``members only'' bargaining. Gould
suggested that Congress require that, where 20 to 30 percent
of the work force so requested, employers bargain
collectively, but only with the consenting workers.
Roberts' suggestion that Gould does not support the secret
ballot is equally unfounded. Gould favors the secret ballot
in all union elections. His proposal that unions be
recognized without elections applies only where a
supermajority of workers--60 percent--have voluntarily signed
authorization cards.
All of these proposals have been advanced as suggestions
for legislative revision, not as interpretations of existing
law, which Gould, as Chairman, would be sworn to uphold.
And if I might add, Mr. President, as he has said he would uphold.
Roberts' suggestion that Gould would betray his duty to enforce enacted
law is completely unsupported character assassination.
Then these two law professors who know Bill Gould go on to write:
We know Gould as a man of unimpeachable integrity and as
one who has consistently brought a balanced, moderate
approach to labor-management relations. His nomination
represents one of the best opportunities to diminish conflict
and polarization which have plagued labor and management for
most of this century.
Signed, Herman Levy, Professor, Santa Clara; William Simon,
Professor, Stanford Law School.
Mr. President, I ask unanimous consent that this be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Los Angeles Times, Nov. 15, 1993]
Labor Board Nominee
President Clinton has nominated our Colleague and friend,
Prof. Bill Gould of Stanford Law School, to be chairman of
the National Labor Relations Board. Because Gould's writings
support freedom for workers to affiliate with labor
organizations of their own choosing and the collective-
bargaining process--the explicit goals of the National Labor
Relations Act--he has become the object of extremist attacks
that frequently distort the record. Paul Craig Roberts'
Column Right (Oct. 31) is an especially unsavory example.
Roberts begins by asserting that Gould's views are
``similar'' to those of a judge whom he states is an
apologist for black criminals. Reminding us of the Willie
Horton rhetoric of the 1988 presidential campaign, Roberts
suggests that Gould, who would be the first black chairman of
the National Labor Relations Board in its nearly 60 years of
existence, is eccentric or radical.
Roberts could not be more off the mark. As a law professor
and arbitrator, who has rendered a majority of awards in
favor of employers, Gould has been consistently viewed as
both moderate and impartial.
Roberts says that Gould will ``* * * restrain management's
ability to communicate with the work force prior to a union
certification vote.'' In fact, in Gould's recent book,
``Agenda for Reform,'' he has written that labor law reform
should expand employer free speech rights in union
organization efforts--not limit them.
Roberts further asserts that Gould favors compelling all
workers to accept union representation where only a minority
favor it. In fact, the proposal to which Roberts refers quite
clearly applied to ``members only'' bargaining. Gould
suggested that Congress require that, where 20% to 30% of the
work force so requested, employers bargain collectively, but
only with the consenting workers.
Roberts' suggestion that Gould does not support the secret
ballot is equally unfounded. Gould favors the secret ballot
in all union elections. His proposal that unions be
recognized without elections applies only where a super-
majority of workers--60%--have voluntarily signed
authorization cards.
All of these proposals have been advanced as suggestions
for legislative revision, not as interpretations of the
existing law, which Gould, as chairman, would be sworn to
uphold. Roberts' suggestion that Gould would betray his duty
to enforce enacted law is completely unsupported character
assassination.
We know Gould as a man of unimpeachable integrity and as
one who has consistently brought a balanced, moderate
approach to labor-management relations. His nomination
represents one of the best opportunities to diminish the
conflict and polarization which have plagued labor and
management for most of this century.
Mrs. FEINSTEIN. Mr. President, I very much respect some of the
opponents on this issue--particularly Senator Kassebaum. I in no way,
shape, or form attribute any of this to her. But I do think what is at
stake here is to try to continue a very conservative bent to a board
which I happen to believe should be centrist in nature.
I think William Gould's appointment offers the opportunity to see
that this Board does become centrist. From everything I know about this
man, his practical application of law would indicate to me that he will
carry out the laws, that he will be fair, that he will be moderate, and
that he has the ability to bring together people of different
persuasions.
It should be no surprise that someone who has represented
management--Mr. Coday--has written urging his support. I hope he is
confirmed by this body.
Thank you, and I yield the floor.
Mr. DOLE addressed the Chair.
The PRESIDING OFFICER. The minority leader is recognized.
Mr. DOLE. Does the Senator from Kansas have any time left?
The PRESIDING OFFICER. The Senator has 27 minutes.
Mrs. KASSEBAUM. Mr. President, I will be happy to yield whatever time
the senior Senator from Kansas would like.
Mr. DOLE. Mr. President, I want to take a few moments to explain why
I intend to vote against the nomination of William Gould to be the next
Chairman of the National Labor Relations Board.
But before doing that, Mr. President, let me first say a word about
the NLRB itself. The NLRB is the Federal Agency charged with enforcing
and interpreting our Federal labor laws. In fulfilling this
responsibility, the NLRB acts as a quasi-judicial body, deciding issues
on a case-by-case basis.
Although the majority of cases that come before the NLRB are
straightforward and can be decided with a minimum of controversy,
occasions do arise giving the NLRB the opportunity to break new ground
and shape labor policy through precedent. This is where the important
policy battles are fought. And that is why the composition of the NLRB
is so critical to maintaining the careful balance between labor and
management that has characterized our system of collective bargaining
for nearly 60 years.
In his writings, Professor Gould has unfortunately expressed many
controversial views that could become the law of the land solely
through the NLRB adjudication process, and without congressional
action.
For example, Professor Gould criticizes the Supreme Court's Ruling in
the patternmakers case, which made clear that union members have a
right to resign from the union at any time, even during the course of a
strike. In Professor Gould's view, this ruling ``Heavily tips the
scales in favor of the individual worker's rights,'' apparently
believing that protecting workers' rights, including the right to
resign, is a bad thing. Instead, Professor Gould would prohibit union
resignations once the decision to call a strike is made. In this way,
he would sacrifice individual rights for the solidarity of the union,
subjecting dissenters to stiff fines and other forms of union
discipline.
Professor Gould has also argued that employers have a duty to
disclose financial information to unions that is much broader than the
disclosure requirement currently imposed by the NLRB. More
specifically, he has urged Congress to overturn the Supreme Court
decision prohibiting unlimited union access to company information. If
an employer resists union demands for sensitive company data, citing
competitive pressures, Professor Gould claims that the NLRB is free to
require full disclosure. In Professor Gould's own words, and I quote:
Disclosure of the true basis for the employer's position
should not only be required--periodic disclosure without a
union request should be obliged, [including] all decision-
making that could conceivably have an impact upon employment
conditions, namely investment decisions, advertising, and
basic product decisions * * *.
Professor Gould would further hamstring business by requiring
employers to bargain over all subjects that may somehow affect the
employment relationship, not just the traditional mandatory subjects of
bargaining such as wages, hours, and other key terms and conditions of
employment. In addition, Professor Gould believes the NLRB has the
authority to order employers who have committed repeated unfair labor
practices to bargain with unions, even if the union has failed to
enlist the support of a majority of employees and has lost a
representation election. In other words, Professor Gould would give
full bargaining status to a union that has failed to demonstrate that
it has won the support of at least a majority of the workers it claims
to represent.
Mr. President, Professor Gould has staked out other troubling
positions that confirm his prounion bias. For example, he publicly
supports a ban on the permanent replacement of economic strikers,
thereby overturning the well-established Mackay Radio precedent. He
also supports giving unions access to company property during an
organizing campaign and questions the current system of secret-ballot
elections to determine union representation. Instead, Professor Gould
advocates the use of authorization cards, enabling unions to be
automatically certified without the benefit of a secret-ballot
election. The authorization-card approach is notoriously unreliable,
and often subjects workers to threats and other forms of intimidation.
Mr. President, I do not question Professor Gould's intellect, nor do
I have any doubts that he will be confirmed later today. Once
confirmed, I wish him the very best.
But Professor Gould's writings and his public statements are clear
and convincing evidence that he possesses a long-standing prounion bias
that renders him incapable of acting impartially as chairman of the
NLRB. Quite simply, Professor Gould has a prounion agenda that he will,
no doubt, aggressively advance once he assumes his new position at the
NLRB. For these reasons, I will vote against confirmation.
Mr. President, I am certain the nomination will be approved, but it
should not be approved. I hope those of us who want balance on the NLRB
will vote against the nomination.
Mrs. KASSEBAUM. Mr. President, I express appreciation to the
Republican leader for his thoughtful comments. This is not an
inconsequential nomination, and as the Senator from Massachusetts
pointed out earlier, the National Labor Relations Board is a very
important body. I hope that our colleagues who have been listening will
give careful thought to some of the questions that have been raised
today.
I urge those who have reservations about the agenda that has been put
forward in the past and the views of William Gould think carefully
about his nomination as Chairman of the National Labor Relations Board.
I urge that they vote against this nominee.
Mr. KENNEDY addressed the Chair.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Could we ask for the yeas and nays?
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
statement on the nomination of william gould iv
Mr. KOHL. Mr. President, I rise today in support of the nomination of
William B. Gould IV as Chairman of the National Labor Relations Board.
William B. Gould, who is currently the Charles A. Beardly Professor of
Law at Stanford University, has a rich and distinguished record in the
field of labor law. In addition to his impressive academic career,
Professor Gould has successfully arbitrated some of the country's most
well known and contentious labor disputes, including the 1992 and 1993
salary disputes between the Major League Baseball Players Association
and the Major League Baseball Players Relations Committee. In the past,
Professor Gould has been a practitioner on all sides of labor issues.
He has represented management in labor law disputes with a law firm in
New York City, and practiced for the United Auto Workers in Detroit. He
also previously served as an attorney for the NLRB. His diverse
background and expertise prepare him well for the obstacles facing
labor-management relations in an increasingly competitive global
market.
Unfortunately, Professor Gould's nomination has become the target of
numerous misconceptions. His critics charge that Professor Gould would
seek to change striker replacement laws. However, in his confirmation
hearings, Professor Gould reaffirmed that his primary responsibility as
Chairman of the NLRB would be to interpret--not change--the current
labor laws. Opponents also argue that Professor Gould would prevent
employees from resigning from unions. On the contrary, Professor Gould
certainly respects the fundamental right of an employee to freely
participate in labor organizations.
Throughout his career, Professor Gould has been called upon by both
employers and unions to arbitrate their disputes, and has established a
reputation for being fair and impartial. His unique combination of
academics and practical experience would, therefore, make Professor
Gould an excellent addition to the NLRB.
statement on the nomination of william gould
Mr. HATCH. Mr. President, I will oppose the nomination of William
Gould as Chairman of the National Labor Relations Board. I do so
reluctantly because I believe Professor Gould to be a fine man and a
distinguished scholar.
This nominee, however, has a troubling record. While this record
includes 30 years' worth of what many would consider controversial
writings, one really need not look back more than a year, to the
release of a book by William Gould titled ``Agenda for Reform.''
The book is truly what its title suggests: It is an agenda for
reforming labor relations and labor law in this country.
The distinguished Senator from Kansas, ranking minority member of the
Labor and Human Resources Committee, has effectively made out the case.
Supporters of this nominee have argued that Professor Gould's
advocacy of radical changes in this Nation's labor laws should not
weight against him because this position will give him authority to
apply and interpret, but not rewrite, the law.
This argument, however, should not carry the day.
Having reviewed Professor Gould's writings, I am persuaded, and in
agreement with Senator Kassebaum, that such strongly held views must
unavoidably inform and shape the decisions of one who serves in this
quasi-judicial position. This is of particular significance in labor
law, where the National Labor Relations Act leaves so much room for
interpretation to the members of the Board.
Furthermore, it is fairly clear that in certain fundamental areas of
the law in which Professor Gould has strongly held views, his views
will, in fact, lead to the overturning of many case precedents.
I would hardly expect to be in complete agreement with this
administration's nominee to this or any other position.
What is, indeed, troubling to me, however, is that the areas in which
it is most clear that Professor Gould will change current caselaw are
those involving fundamental protections of the rights of individual
employees; the right of employees to choose or not choose a union as
their bargaining representative, and the right of employees to engage,
but also to refrain from engaging in, union activities.
Professor Gould has suggested a balance between the rights of
individual employees and the need for union solidarity. His critique of
current law strongly suggests to me that he is prepared to tip that
balance much too strongly toward union solidarity and against
individual rights.
In conclusion, Mr. President, let me say that I have carefully
considered the arguments in favor of this nominee, including his record
as an arbitrator. Those arguments, however, are not sufficient to mute
the strong views expressed by the nominee himself on major issues in
labor law which he will be in a position to significantly influence if
confirmed as Chairman of the Board.
the nomination of prof. william gould iv
Mr. GRASSLEY. Mr. President, I rise today to speak in opposition to
the nomination of Prof. William Gould to the National Labor Relations
Board. Professor Gould's views on labor law are well documented, so I
am confident that my decision to oppose his nomination is well founded.
Most Americans are not familiar with the work of the National Labor
Relations Board. This five-member Board was created by the National
Labor Relations Act of 1935. The board administers the Nation's labor
law and is vested with the authority to prevent or remedy unfair labor
practices committed by employers and unions and to safeguard employees'
rights to organize and have union representation.
The Board functions much like a judicial body. It acts when formally
requested to do so. Individuals, employers and unions can all bring
cases to the Board. It decides issues on a case-by-case basis rather
than issuing regulations. These decisions and their precedents have a
strong impact on the laws governing the workplace and the relationship
between labor and management. So, you can see why it is important that
the Board be impartial.
Professor Gould's nomination runs counter to this notion. His views
regarding past Board decisions and labor law, in general, are well
documented and clearly defined. I find his views troubling, if not
alarming. On the eve of his nomination to the Board, his book, ``Agenda
for Change,'' was published. This book outlines not only his
controversial views regarding labor law but also his opinions regarding
the many past decisions rendered by the National Labor Relations Board.
In his book, Professor Gould advocates substantial changes to current
law, which has been in place for nearly 50 years. He even advocates
overturning a number of previous Board decisions.
Many of my colleagues have already provided examples of Professor
Gould's views, so will not speak at great length about them. However,
in brief, Professor Gould believes that employers should not be able to
hire permanent replacement workers during a strike. This body has
failed to pass legislation permitting this practice, but Professor
Gould has written that under the authority of the Board, the NRLB could
prevent employers from hiring replacement workers, with or without
legislation.
Professor Gould also advocates a change in the law which governs the
process by which employees vote for union representation. Under current
law union representation can be gained, if the majority of workers vote
for representation. This election is supervised by the National Labor
Relations Board and is a two-step process. A majority of workers must
first sign authorization cards inviting organization activity but union
certification is achieved only after a secret ballot. This two-step
process protects individual rights by allowing workers two
opportunities to either support or reject union representation.
Professor Gould advocates an amendment to the National Labor Relations
Act which would significantly change this process.
Professor Gould advocates the use of authorization cards alone as a
way to elect union representation. Unfortunately, authorization cards
have not been a reliable indicator of a worker's desire for union
representation. There have been numerous examples of abuse of
authorization cards in the union organizing effort. Only a secret
ballot protects the rights of workers to accept or deny union
representation. I am fearful that Professor Gould rejects the concept
of individual rights as well as the right to work laws which govern
many of our States, including my own State of Iowa.
Professor Gould's nomination to the National Labor Relations Board
tarnishes the impartiality of the Board. His views are well known and
it appears clear that he will pursue his agenda to change and influence
current labor law, if confirmed. It is disturbing to me that as we try
to foster a better relationship between labor and management we are
about to confirm an individual who seems unwilling to fairly evaluate
this relationship.
statement on the nominations of william b. gould iv, margaret a.
browning, charles i. cohen, and fred feinstein
Mr. DURENBERGER. Mr. President, the National Labor Relations Board
must prevent and remedy unfair labor practices by employers and labor
organizations, and conduct fair employee representation elections. As
such, it is charged with the supremely difficult task of assuring the
peaceful resolution of labor-management disputes, protecting the rights
of both employees and employers, and ensuring that American industry is
prepared to meet the challenges of the competitive global marketplace.
I have reviewed Prof. William Gould's background and writings. I have
met personally with Professor Gould. And I have been very impressed by
his scholarship, his substantive knowledge of labor relations law, and
his profound commitment to public service. While I certainly do not
agree with all his views and writings, Professor Gould is clearly
qualified to serve on the National Labor Relations Board and I believe
he should be confirmed.
Professor Gould is a nominee of outstanding achievement in the labor
relations field. As a practicing attorney, he has represented business,
labor, and Government in labor relations matters, and he has attained
national prominence as a leading arbitrator and scholar. I am
convinced, from his record and from his testimony before the Senate
Labor Committee, that Professor Gould will enforce the law in a fair
and impartial manner.
Professor Gould's record as an arbitrator, in particular, satisfies
me that he will decide cases that come before him so as to promote
stability and cooperation between labor and management. The president
of the National Academy of Arbitrators has stated that Professor
Gould's record as an arbitrator demonstrates that he ``possess[es] a
judicial temperament'' and has earned ``the acceptance of both the
labor and management communities.''
Mr. President, I know that some of my friends and colleagues in this
body believe that Professor Gould should not be confirmed because of
his writings on how our labor laws might be changed. But I think it is
important that we separate Professor Gould's role as an academic, from
the adjudicative role he would serve on the NLRB. Throughout the
confirmation process, Professor Gould made clear that as a member of
the Board, he would be bound to apply current law, as written, and that
he would not substitute his policy preferences for those expressed by
Congress.
Indeed, the professor explained during hearings before the Senate
Labor Committee that, in his view, one of the most important steps to
achieving stable and cooperative labor-management relations is to
provide both workers and businesses with the assurance that current law
will be faithfully enforced.
Mr. President, in October I joined with Senator Kassebaum and my
Republican colleagues on the Labor and Human Resources Committee in
withholding my complete support for Professor Gould's nomination until
President Clinton consulted with us and with the business community
regarding the remaining nominees for the Board.
At that time, I made it clear that I supported Professor Gould's
nomination. But I also said it was my belief that we should confirm
Professor Gould only after the President had sent to Congress a
complete package of nominees for the remaining open positions on the
Board.
Because it is essential that both labor and management have
confidence in the Board's ability to address grievances in a fair,
consistent, and even-handed manner, I was troubled by the fact that the
business community did not support Professor Gould's nomination. It was
my hope that they would support the nominee for at least one of the
positions yet to be filled on the Board.
Subsequently, President Clinton did consult with several of my
Republican colleagues and with the business community regarding the
remaining Board nominations. After seeking our input, the President
selected Charles Cohen to fill one of the Board vacancies. Mr. Cohen
was recommended and endorsed by me and by other Republican members of
the Labor Committee, including our distinguished ranking member,
Senator Kassebaum. He was also recommended and endorsed by the business
community.
Mr. Cohen is a lawyer. He has represented management clients in
private practice here in Washington, DC, for nearly 15 years. He
currently serves as managing partner of the Washington, DC, office of
Ogletree, Deakins, Nash, Smoak & Stewart. Before entering private
practice, he held numerous positions with the NLRB for 8 years during
the 1970's.
Margaret Browning, the nominee for the other vacant seat on the
Board, has represented labor unions in private law practice since 1979.
She and Mr. Cohen bring to the NLRB combined experience of 36 years in
the labor law field.
Both these nominees a wealth of experience and knowledge that will be
very beneficial to the Board.
Frederick Feinstein, who has been nominated for the position of
general counsel, has served as staff director and counsel to the House
Labor Subcommittee under three different chairmen since 1977. Before
coming to the Hill, he worked as a field attorney for 2 years with the
NLRB's regional office in Winston-Salem, NC. I believe Mr. Feinstein is
knowledgeable and well-qualified to serve as the NLRB's general
counsel.
Mr. President, all these distinguished nominees share with me the
very strong belief that we need to reform the decisionmaking process at
the NLRB. In testimony before the Labor Committee and in private
meetings, all have stressed their strong conviction that steps must be
taken to expedite the adjudication of unfair labor practice charges at
the Board.
Mr. President, the current system that we have created for processing
unfair labor practice claims is protracted, burdensome, untimely, and
therefore fails to provide meaningful relief to parties involved in
labor disputes. Last year, I introduced a bill--S. 598, the Justice for
Permanently Displaced Striking Workers Act of 1993, that would set
strict timetables on the NLRB's processing of certain unfair labor
practice claims. It is my hope and belief that these nominees will do
whatever is in their power under current law to decide ULP cases as
quickly and efficiently as possible.
Mr. President, as I mentioned earlier, I am not in total
philosophical agreement with all these nominees. But I strongly believe
that the President of the United States is entitled to some deference
in his choice of nominees as long as they are qualified. I am now
satisfied that the President has made every effort to install a
qualified and even-handed decisionmaking body at the Board.
In this regard, I urge my colleagues to confirm Professor Gould, Mr.
Cohen, Ms. Browning, and Mr. Feinstein to serve on the NLRB in a
bipartisan manner.
I yield the floor.
Ms. MOSELEY-BRAUN. Mr. President, I rise today to express my strong
support for the nomination of William B. Gould IV to be the Chairman of
the National Labor Relations Board. My reasons for supporting this
nomination are simple and straightforward. William Gould is a nominee
of exceptional ability who will bring to the NLRB not just the
thoughtness and intelligent that come from spending more than 20 years
as a law professor, but also the practical experience of having served
as an attorney and arbitrator. His nomination is an example of
President Clinton's continued commitment to excellence in his
appointments.
I would like to a brief moment to enumerate just a few of the
qualifications that distinguish this nominee. Professor Gould comes
before the Senate with the unique experience of having represented, at
one time or another, all perspectives that appear before the NLRB.
Professor Gould began his career in 1961 as an attorney for the United
Auto Workers. He left that job in 1962 to serve for 3 years as an
attorney for he NLRB. Following his tenure with the NLRB, Professor
Gould represented management for 3 years at a distinguished law firm in
New York City. Never before has a nominee for the NLRB possessed such a
breadth of experience in the labor field, experience that will serve
him well during his tenure.
Of course, Professor Gould's career didn't end in the 1960's, a
Member of the prestigious National Academy of arbitrators since 1970,
Professor Gould has arbitrated more than 200 labor disputes, including
the 1992 salary disputes in major league baseball. During that time, he
has earned the respect of labor and management alike for his sound
judicial temperament.
Finally, William Gould has served as a professor at one of the
Nation's most prestigious law schools, Stanford Law School, since 1972.
He has taught labor law to hundreds of students while writing six books
and more than 60 scholarly articles in the field. His work establishes
him as a leading expert on a wide variety of labor issues, including
the National Labor Relations Act and NLRB practice and procedure.
However, despite this distinguished record, some opponents have tried
to paint Mr. Gould as a radical nominee who, once in office, will seek
to undo the very foundations of our Nation's labor laws. The fact of
the matter is that nothing could be further from the truth. Has Mr.
Gould, in the past, suggested possible legislative changes in current
labor relations law? Of course he has. As a professor at Stanford
University and a noted labor law scholar, that was his job. As stated
by former Republican NLRB member John Raudabaugh--who, I might add, was
a management attorney and Bush appointee--Professor Gould's writings
indicate that he ``was simply doing what academics do best--writing and
theorizing about structural changes that might improve the state of
labor relations.
But the mere fact that Professor Gould has, while serving as
professor, suggested changes in current labor law does not mean that he
would use his position on the NLRB to make such changes. In fact, Mr.
President, the record clearly demonstrates that the opposite is true.
While appearing before the Senate Labor Committee, Mr. Gould stated
in response to specific questions that, if confirmed, he would concern
himself ``Solely with the interpretation of the law as it is presently
written.'' He went on to state that ``Both as an arbitrator and as
chairman of the board, my role is to decide cases based upon the facts
and relevant law. In neither capacity is the fashioning of legislation
part of the job description. That is the appropriate role for
Congress.'' Clearly, these are not the words of a wild-eyed radical
just waiting to get his hands on the Nation's labor laws.
But of course, Mr. President, you need not take my word for it. You
can look to the statements that have poured in to the Senate Labor
Committee from unions and management alike in support of Professor
Gould's nomination. I would like to take a moment to read just a
sampling of these statements of support.
According to the current president of the National Academy of
Arbitrators, Professor Gould's record as an arbitrator demonstrates
that he ``Possess[es] a judicial temperament that has earned him the
acceptance of both the labor and management communities.'' More than 75
labor relations academics have supported his nomination, calling him an
``Outstanding leader in labor relations * * * uniquely qualified for
this critical position.''
A management attorney from Cleveland, OH, states that Professor Gould
will ``Enforce the National Labor Relations Act as it is written and
leave amending of the statute * * * to congress * * *''
Another management attorney from San Francisco, CA, states Professor
Gould is ``Especially attractive to a management lawyer because he is
firmly in the middle ground between labor and management * * * his
reputation for ability, integrity, and fairness is beyond question.''
Mr. President, I could continue ad nauseam with examples of such
statements because, as I stated, the Labor Committee has received an
outpouring of support for this nomination. However, in the interest of
time, I will ask that the lengthy list of individuals and organizations
who support this nomination be entered into the Record following my
remarks.
In conclusion, Mr. President, I want to state for the record who
Professor Gould is. Despite the efforts of some opponents to paint him
as such, Professor Gould is not the ardent advocate of radical labor
law reform who is simply waiting for the opportunity to dismantle the
NLRB. Rather, he is a prominent arbitrator, a distinguished academic,
and an individual of the highest integrity who has stated he will, if
confirmed as Chairman of the NLRB, concern himself solely with
interpreting the present law. He is an individual who has earned the
respect and trust of both management and labor.
And finally, in the words of Tom Campbell, a fellow labor law
academic and former Republican Member of Congress, Professor Gould is
an individual who is ``Superbly qualified * * * has the deepest respect
for the rule of law * * * has a brilliant mind * * * [and] will carry
out the National Labor Relations Act as it has been interpreted by the
courts and as it was enacted by the Congress.''
Mr. President, I can think of no individual more qualified to serve
as Chair of the NLRB than the individual who has been nominated by the
President, Prof. William Gould. I am proud to speak in support of his
nomination, and I urge that he be swiftly confirmed.
There being no objection, the list of supporters previously referred
to was ordered to be printed in the Record, as follows:
Supporters of Prof. William Gould
Academia
Robert N. Covington, Professor of Law, Vanderbilt
University, Nashville, TN. Dated August 5, 1993.
Charles B.Craver, Merrifield Research Professor, The George
Washington University, Washington, D.C. Dated September 2,
1993.
Jack H. Friedenthal, Dean, The George Washington
University, The National Law Center, Washington, D.C. Dated
September 9, 1993.
Alvin L. Goldman, Salmon Professor of Law, University of
Kentucky, Lexington, KT. Dated August 23, 1993.
Herman M. Levy, Professor of Law, Santa Clara University,
Santa Clara, CA. Dated August 25, 1993. (Letter signed with
75 other supporters): Dean Roger Ian Abrams, Rutgers Law
School; Peter L. Adomeit, Western New England College, School
of Law; Reginald H. Alleyne, U.C.L.A. School of Law; Florian
Bartosic, University of California, Davis, School of Law;
Robert Belton, Vanderbilt University, School of Law; Herbert
N. Bernhardt, University of Baltimore, School of Law; Merton
C. Bernstein, Washington University, School of Law; and
Ronald C. Brown, University of Hawaii.
Norman L. Cantor, Rutgers Law School; Robert N. Covington
Vanderbilt University, School of Law; Charles B. Craver,
George Washington University, National Law Center; Kenneth G.
Dau-Schmidt, Indiana University, School of Law, Bloomington;
William F. Dolson, University of Louisville, School of Law;
R. Wayne Estes, Pepperdine University, School of Law; Samuel
Estreicher, New York University, School of Law; David E.
Feller, University of California, Berkeley, School of Law;
and Barbara J. Fick, Notre Dame Law School.
Joel William Friedman, Tulane University, School of Law;
Jennifer Friesen, Loyola Law School; Julius G. Getman,
University of Texas, School of Law; Raymond Goetz, University
of Kansas, School of Law; Dean Michael J. Goldberg, Widener
University, School of Law; Stephen B. Goldberg, Northwestern
University, School of Law; Richard A. Gonzales, University of
California, Hastings, College of Law; Dean Robert A. Gorman,
University of Pennsylvania, Law School; and Joseph Grodin,
University of California, Hastings, College of Law.
Michael Harper, Boston University, School of Law; Roger
Hartley, Catholic University, School of Law; Dean Timothy J.
Heinsz, University of Missouri, School of Law; Stanley D.
Henderson, University of Virginia; James E. Jones, Jr.,
University of Wisconsin, Law School; Leo Kanowitz, University
of California, Hastings, College of Law; Thomas C. Kohler,
Boston College, Law School; Robert F. Koretz, Syracruse
University, College of Law; and Douglas Leslie, University of
Virginia, School of Law.
Lance M. Liebman, Columbia University, School of Law;
Robert F. Koretz, Syracuse University, College of Law; J.
Keith Mann, Professor of Law Emeritus, Stanford University,
School of Law; Stephen A. Mazurak, University of Detroit,
Mercy School of Law; John P. McCrory, Vermont Law School;
William F. McHugh, Florida State University, College of Law;
Robert G. Meiners, California Western, School of Law; Leroy
S. Merrifield, George Washington University, National Law
Center; and Gary Minda, Brooklyn Law School.
Charles J. Morris, Professor Emeritus, Southern Methodist
University; William P. Murphy, University of North Carolina,
School of Law; Walter E. Oberer, University of Utah, College
of Law; Quentin O. Ogren, Loyola Law School; Cornelius J.
Peck, University of Washington, School of Law; Daniel H.
Pollitt, University of North Carolina, School of Law; David
Rabban, University of Texas, School of Law; John E. Sanchez,
Nova University, Shepard Broad Law Center; and Eric J.
Schmertz, Hofstra University, School of Law.
Don W. Sears, University of Colorado, School of Law; Eileen
Silverstein, University of Connecticut, School of Law; Clyde
W. Summers, University of Pennsylvania, Law School; Donald T.
Weckstein, University of San Diego, School of Law; Steve L.
Willborn, University of Nebraska, College of Law; Calvin
William Sharpe, Case Western Reserve University, Law School;
William H. Simon, Stanford Law School; and Madelyn C. Squire,
Howard University, School of Law.
Theodore, J. St. Antoine, University of Michigan, Law
School; Katherine Van Wezel Stone, State University of New
York at Buffalo; W. Gray Vause, Stetson University, College
of Law; Lea Vander Velde, University of Iowa, College of Law;
Paul Weiler, Harvard University, Law School; June M.
Weisberger, University of Wisconsin, Law School; Marley
Weiss, University of Maryland, School of Law; Dean Harry H.
Wellington, New York Law School; and Martha S. West,
University of California, Davis, School of Law.
Willard Wirtz, University of San Diego, School of Law;
Donald H. Wollect, McGeorge School of Law, University of the
Pacific; Stephen G. Wood, Brigham Young University, Law
School; Jayne Zanglein, Texas Technology University, School
of Law; and Michael J. Zimmer, Seton Hall University, School
of Law.
Jean T. McKelvey, Professor and Coordinator of Off-Campus
Graduate Credit Courses, Cornell University-NY State School
of Industrial and Labor Relations, New York, NY. Dated
September 8, 1993.
arbitrators
Board of Arbitration, U.S. Steel Corporation and United
Steelworkers of America, Pittsburgh, PA. Alfred C. Dybeck,
Chairman. Dated September 10, 1993.
Kagel and Kagel, San Francisco, CA. John Kagel, Neutral
Arbitrator. Dated September 13, 1993.
National Academy of Arbitrators Ann Arbor, MI, Dallas L.
Jones, President, Dated September 14, 1993.
Frances Bairstow, Arbitrator, Clearwater, FL, Dated August
15, 1993.
Richard Mittenthal, Labor-Management Arbitrator, Bingham
Farms, MI, Dated August 3, 1993.
Riley and Roumell, Detroit, MI, George T. Roumell, Jr.,
Labor Arbitrator, Dated September 24, 1993.
Eva Robins, Arbitrator, Attorney at Law, New York, NY,
Dated September 2, 1993.
Arthur Stark Arbitration, New York, NY, Arthur Stark,
Member and Former President of the National Academy of
Arbitrators (NAA), Dated August 2, 1993.
current and former members of congress
Tom Campbell, Professor of Law, Stanford Law School, CA,
(Former Representative in California's 12th Congressional
District, 1989-1993), Dated September 15, 1993.
Representative William L. Clay, Michigan's 1st
Congressional District, Dated September 7, 1993.
judges
U.S. Court of Appeals, Sixth Circuit, Kentucky, Tennessee,
Ohio, and Michigan, Judge Damon J. Keith, Dated September 21,
1993.
U.S. District Court, Eastern District of Michigan, Ann
Arbor, MI, Judge Charles W. Joiner, District Judge, Dated
September 9, 1993.
U.S. District Court, Southern District of New York, New
York, NY, Judge Morris E. Lasker, Dated September 1, 1993.
national bar association, inc., washington, dc
Paulette Brown, President, Dated August 24, 1993.
management representatives
Elliot S. Azoff, Attorney; Baker & Hostetler, Cleveland,
OH, Dated September 23, 1993.
Arthur P. Menard, Attorney; Cuddy, Lynch & Bixby, Boston,
MA, Dated September 8, 1993.
Stanley E. Tobin, Attorney; Hill Farrer & Burrill, Los
Angeles, CA, Dated September 10, 1993.
Basil A. Paterson, Attorney; Meyer, Suozzi, English &
Klein, P.C., Mineola, NY, Dated September 23, 1993.
Frederick A. Morgan, Partner in the Labor Department;
Frederick A. Morgan, San Francisco, CA, Dated September 14,
1993.
William J. Emanuel, Attorney; Morgon, Lewis & Bockius, Los
Angeles, CA, Dated September 13, 1993.
Arthur B. Smith, Jr., Attorney; Murphy, Smith & Polk,
Chicago, IL, Dated September 14, 1993.
Robert McAlpine, Director Policy & Government Relations;
National Urban League, Inc., Washington, D.C., Dated
September 22, 1993.
Stuart H. Bompey, Attorney; Orrick Herrington & Sutcliffe,
New York, NY. Dated September 14, 1993.
Martin J. Oppenheimer, Chairman of the Labor and Employment
Department; Proskauer Rose Goetz and Mendelsohn, New York,
NY. Dated September 8, 1993.
Saul G. Kramer, Co-chairperson of the Labor and Employment
Department; Kroskauer Rose Goetz & Mendelsohn, New York, NY.
Dated September 14, 1993.
Edward Silver, Member of the Firm; Proskauer Rose Goetz &
Mendelsohn, New York, NY. Dated September 9, 1993.
R. Lawrence Ashe, Jr., Attorney; R. Lawrence, Jr., Atlanta,
GA. Dated September 13, 1993.
Morton H. Orenstein, Attorney; Schachter, Kristoff,
Orenstein & Berkowitz, San Francisco, CA. Dated September 2,
1993.
Richard Martin Lyon, Attorney; Seyfarth, Shaw, Fairweather
& Geraldson, Chicago, IL. Dated September 9, 1993.
Dr. Edward J. Miller, Senior Vice President; Tri Valley
Growers, Modesto, CA. Dated September 7, 1993.
Neal Sullins, Senior Attorney; Weyerhaeuser, Takoma, WA.
Dated September 13, 1993.
Arnold E. Perl, Management Labor Attorney; Young & Perl,
P.C., Memphis, TN. Dated September 13, 1993.
Professional Sports Representatives
Boston Red Sox, Boston, MA, James ``Lou'' Gorman, Senior
Vice President General Manager. Dated August 20, 1993.
Golden State Warriors, Oakland, CA, Al Attles, Vice
President and Assistant General Manager. Dated September 7,
1993.
Major League Baseball Player Relations Committee, New York,
NY. Louis Melendez, Associate Counsel. Dated August 23, 1993.
The Oakland Athletics Baseball Company, Oakland, CA,
Richard L. Alderson, President and General Manager. Dated
September 10, 1993.
San Francisco 49ers, San Francisco, CA, Carmen A. Policy,
President. Dated September 1, 1993.
Seattle Mariners, Seattle, WA, Charles G. Armstrong,
President. Dated August 24, 1993.
unions
Council of GSA Locals, Council 236, American Federation of
Government Employees, Aubum, WA, Bruce G. Williams, Executive
Vice President, Council #236. Dated August 18, 1993.
United Food & Commercial Workers International Union, AFL-
CIO & CLC (UFCW), Washington, D.C., William H. Wynn,
International President. Dated July 2, 1993.
Gwend Johnson, Member of Communications Workers of America
and the Coalition of Black Trade Unionists, Washington, D.C.
Dated September 24, 1993.
Additional Supporters of Prof. William Gould.
academia
R. Wayne Estes, Professor of Law, Pepperdine University,
Malibu, CA, Dated September 21, 1993.
Jay S. Siegel, Harvard University Center for Business and
Government, Boston, MA, Dated September 22, 1993.
arbitrators
Anthony V. Sinicropi, LaQuinta, CA, Dated October 1, 1993.
attorneys
David A. Cathcart, Los Angeles, CA, Dated October 15, 1993.
civil rights organizations--joint letter of September 30, 1993.
National Association for the Advancement of Colored People;
National Association for the Advancement of Colored People
Legal Defense and Educational Fund, Inc.; National Council of
La Raza; National Urban League; and Women's Legal Defense
Fund.
management representatives
Lloyd C. Loomis, Los Angeles CA, Dated September 27, 1993.
Maureen E. McClain; Kauff, McClain & McGuire, San
Fransisco, Dated September 10, 1993.
Patrick N. McTeague; McTeague, Higbee, Libner, MacAdam,
Case, & Watson, Topsham, ME, Dated October 1, 1993.
George E. Preonas; Seyfarth, Shaw, Fairweather & Geraldson,
Los Angeles, CA, Dated September 22, 1993.
unions
AFSCME Council 31, Chicago, IL, Rosetta Daylie, Associate
Director, Dated October 7, 1993.
AFSCME/OHIO, Worthington, OH, Jacqueline L. McClellan, IUR.
Dated October 1, 1993.
Amalgamated Service and Allied Industries, Washington,
D.C., Clayola Brown Manager/Secretary-Treasurer. Dated
September 27, 1993.
American Federation of State, County, and Municipal
Employees. AFL-CIO, Indianapolis, IN, Stephan Fantauzzo,
Executive Director. Dated September 28, 1993.
Coalition of Black Trade Unionists, Baltimore Chapter,
Baltimore, MD, Mary Jones, Chairperson. Dated September 30,
1993.
Coalition of Black Trade Unionists Central Alabama Chapter,
Birmingham, AL, Frank Paige, Chairperson. Dated October 4,
1993.
Coalition of Black Trade Unionists, Buffalo Chapter,
Buffalo, NY, Robert Massey, Chairperson, Dianne Flakes, Vice
Chair, Ron Wofford, Communications Chair. Dated October 8,
1993.
Coalition of Black Trade Unionists, Columbus Chapter,
Columbus, OH, Danny N. Martin and Marlene Hill-Powell. Dated
October 1, 1993.
Coalition of Black Trade Unionists, Joliet Chapter,
Lockport, IL, Eveleyna U. Washington, President. Dated
October 11, 1993.
Coalition of Black Trade Unionists, Midwest Region 6, IN,
IL, MN, WI, Cordelia Lewis, Representative. Dated September
29, 1993.
Coalition of Black Trade Unionists, Toledo Chapter, Toledo,
OH, Anita R. Barton, Chapter Chairperson. Dated October 7,
1993.
Coalition of Black Trade Unionists, Washington, DC, William
H. Simons, Treasurer. Dated September 27, 1993.
DC 1707, New York, NY, Bettye W. Roberts, President. Dated
October 1, 1993.
Local 743, Chicago IL, Robert T. Simpson, Jr., President.
Dated October 6, 1993.
United Food and Commercial Workers, New York, NY, Robert H.
Wilson, President. Dated September 27, 1993.
UFCW, Washington, D.C, William H. Wynn, International
President. Dated October 18, 1993.
political caucuses
The National Black Caucus of State Legislators, Washington,
D.C., Senator Regis F. Groff of Colorado, President. Dated
September 24, 1993.
National Black Chamber of Commerce, Inc., Indianapolis, IN,
Harry C. Alford, Chairman & CEO. Dated September 27, 1993.
professional sports representatives
Milwaukee Brewers Baseball Club, Milwaukee, WI, Allan H.
Selig, Chairman-CEO. Dated September 28, 1993.
Mr. PELL. Mr. President, I am very pleased President Clinton chose to
nominate someone of Mr. Gould's stature and experience to the post of
Chairman of the National Labor Relations Board. If I recall, it has
been quite some time since the NLRB has been led by someone with his
balanced experience. I am sure this past experience is an indication of
the openmindedness he will bring to his new post.
Over the years, Mr. Gould has been involved in all facets of labor
relations. After over a decade of what some might call business-
oriented control of the NLRB, it is refreshing to have a nominee to
this post with experience in both labor and management.
I would also note that Bill Gould began his distinguished career as
an undergraduate at the University of Rhode Island.
While I received numerous letters supporting Bill Gould's nomination,
many quite enthusiastic in fact, one letter in particular sticks out in
my mind. Along with his many professional qualifications, Lou Gorman,
general manager of the Boston Red Sox, felt compelled to note Mr.
Gould's longtime devotion to the Red Sox. While not directly connected
to the position of Chair of the NLRB, being a Red Sox fan for 47 years
certainly indicates a sense of diligence and dedication, two attributes
he may find useful in Federal service.
Mrs. BOXER. Mr. President, I would like to express my unqualified
support for the nomination of William Gould IV to chair the National
Labor Relations Board.
I am excited at the intelligence and sense of fairness that he will
bring to the National Labor Relations Board, which needs new leadership
to guide its mission in resolving labor-management conflict and to do
its part to promote the economic well-being of all Americans.
You will hear a lot about Mr. Gould and his views--he is a prolific
author of many scholarly and popular press articles--but the one theme
that stands out is his fundamental belief in the strengths, for both
management and labor, of democracy in the workplace.
He has had a career that has provided him varied vantage points from
which to view the development of labor-management relations since his
graduation from Cornell Law School and study at the London School of
Economics in the early 1960's.
He worked as assistant general counsel for the United Auto Workers,
served as a staff attorney for the NLRB, and represented management at
a private law firm in New York.
He has served as a distinguished professor of law at Stanford
University since 1972.
A member of the National Academy of Arbitrators, Mr. Gould has
presided over 200 arbitration cases in nearly a quarter of a century.
He was first admitted to the academy at the age of 33, one of the
youngest members ever to join. That broad experience has taught him how
to find the delicate balance between competing interests. He has helped
to settle more than 200 labor disputes, across a broad array of
occupations.
He has demonstrated a fair hand. In fact, as an arbitrator, he has
ruled in favor of employers in 59 percent of the cases. He realizes the
critical role labor-management cooperation will play as our industries
face the restructuring needed to flourish in the international economy.
He supports easing restrictions preventing companies from forming
more labor-management committees to work out their differences before
they lead to strikes and in order to promote workplace efficiencies.
He knows, as a baseball fan and as an arbitrator in the 1992 salary
disputes in major league baseball, that management cannot hit a home
run without players willing to run the bases.
Mr. Gould has studied all aspects of our labor laws and their effects
on this Nation. Within this single nomination, you have combined the
openmindedness of the scholar and the practical experience of the
negotiator.
I am also impressed that he understands the role of the Chairman of
the National Labor Relations Board. He knows this job is not to set
policy but to follow the law as passed by this Congress.
As he said at his confirmation hearing: as Chairman,
My charge is to interpret existing law as it is written * *
* my role is to decide cases based upon the facts and
relevant law. In neither capacity is the fashioning of
legislation part of the job description. That is an
appropriate role for Congress.
His priorities as Chairman of the NLRB are: One, to establish a more
efficient administrative agency where it does not take an average of
300 days from filing of a charge of unfair labor practice to a
determination by the Board. We cannot afford administrative logjams
contributing to already difficult conflict resolution.
Two, as an avid proponent of informal dispute resolution, Bill Gould
will extend this remedy to the time before the complaint of unfair
labor practice is issued by the Board's general counsel.
His third priority, as he said at his confirmation hearing, is above
all others, and that is--
* * * to eliminate or substantially diminish the
polarization between the parties and to make the Board into
an agency which as the full confidence or both labor and
management, the Federal judiciary, as well as the general
public.
Mr. President, I can think of no more appropriate job description for
the Chairman of the National Labor Relations Board.
I think the comments of a bay area lawyer quoted in a story on Mr.
Gould in the San Francisco Chronicle summed it up the best when he
said:
What you're going to see is somebody whose fundamental
interest is protecting employee rights, but that's
counterbalanced by the reality that if you don't have
employers you don't have employees.
I urge my colleague to confirm William Gould to serve as Chairman of
the National Labor Relations Board.
Mr. KENNEDY. I expect that we will move toward a vote in the very
near future. I will just make a final few comments and then suggest the
absence of a quorum so that the leader can move us into a vote
situation.
Mr. President, I would like to comment very briefly on a couple of
matters that have been raised by some in the Chamber this afternoon as
issues which should give some pause to support this nomination.
My good friend, Senator Nickles, was pointing out that Mr. Gould
supported legislation to require joint safety and health committees to
develop cooperation between employers and employees to deal with the
issue of health and safety in the workplace.
It is true that we have legislation before our committee to require
this. But this is a process now which is already followed in a number
of States, including the State of Washington and the State of Oregon,
and the business communities in those States have been wholly
enthusiastic in support of that concept.
What we have seen in those States has been a significant reduction in
workmen's compensation and lost time from workplace injury and illness,
increased safety, and less regulation imposed on many of those
industries. So this is something that we will have an opportunity to
debate, hopefully, in this Congress.
Second, Mr. President, Joe Dear, the Assistant Secretary of Labor who
is running the OSHA program at the Labor Department and who was
formerly Commissioner of Labor in the State of Washington, testified
before our committee that rather than being an instrument to promote
unionism, requiring safety and health committees had a contrary effect;
that one of the elements that causes employees to support creating a
union is an unsafe workplace, and that where there is a safety and
health committee that employees can use to get a safe workplace, there
is less pressure for them to move towards unionization.
Now, the fact that Mr. Gould supports safety and health committees
does not seem to me a very radical idea, and it is again an idea that
the administration supports, and, hopefully, we will have bipartisan
support when we are able to consider the legislation in the Chamber.
Third, a question was raised about whether Professor Gould would
change the law with regard to what is or is not construed a mandatory
subject of bargaining. That question was put to Mr. Gould specifically
at his confirmation hearing before the Labor and Human Resources
Committee: ``Would you place any limit on the subject matter of
bargaining under your view of labor law?''
Mr. Gould's answer, which is part of the hearing record, at page 37
was:
The elimination of the distinction between mandatory and
permissive subjects for bargaining is not a policy that is
open to the Board, and any legislative modifications of the
current law would come to the Board in the context of
concrete legislation which would reflect legislatively
determined standards in this area.
He recognized quite completely that if there was going to be some
changes in that aspect of the law, it has to be done legislatively and
not by the NLRB.
Finally, Mr. President, there has been at least some attempt--
hopefully not persuasively--to characterize Mr. Gould as being some
kind of ``radical'' in terms of his understanding of labor law issues.
I have a copy of a Law Review article by Prof. Charles Fried, of the
Harvard Law School, entitled, ``Individual and Collective Rights in
Work Relations. Reflections on the Current State of Labor Law and Its
Prospects.''
As the Members here would know, Professor Fried was Solicitor General
in the Reagan administration and has what I think could fairly be
described as quite conservative views in the labor law area. In fact,
in this article Professor Fried is extremely critical of what he
describes as certain ``radical left legal scholars'' and their views on
U.S. labor law. It is interesting to note that Professor Fried has a
footnote, footnote 17, in which he cites a particular article written
by Professor Gould where he goes out of his way to make clear that
Professor Gould is not one of the so-called radical scholars he is
criticizing.
For a discussion of such and such an issue, he writes in the
footnote, ``see generally Gould.'' And then he adds in parentheses,
``Not a radical legal scholar!'' And he actually has an exclamation
point here for emphasis.
So here we have a distinguished scholar with strong conservative,
Republican credentials who has actually studied and is familiar with
Gould's academic writing emphatically rejecting the notion that Bill
Gould is somehow out of the main stream. I think this demonstrates that
the exaggerated statements that have been made to the effect that there
is something extreme or outside the mainstream about Professor Gould's
views really do not hold water.
Mr. President, I thank the Members for their attention.
Let me finally I just point out that when these nominees are
confirmed, there will be two Bush appointees still on the Board and
then there will be three of President Clinton's three nominees, who
include Charles Cohen, who is a Republican. I think The Board will be
ably and capably led by Professor Gould, who has demonstrated
extraordinary integrity and professional competency, and a fundamental
commitment to the rule of law over a long and distinguished career, and
I very much hope that the Senate will approve his nomination.
Mr. President, I yield back the remainder of my time.
Mrs. KASSEBAUM. I yield back the remainder of my time.
The PRESIDING OFFICER. Under the previous order, the question is,
Shall the Senate advise and consent to the nomination of William B.
Gould IV, of California, to be a member of the National Labor Relations
Board? On this question, the yeas and nays have been ordered, and the
clerk will call the roll.
The legislative clerk called the roll.
Mr. FORD. I announce that the Senator from Ohio [Mr. Glenn] and the
Senator from Arkansas [Mr. Pryor] are necessarily absent.
I also announce that the Senator from Maryland [Ms. Mikulski] is
absent because of illness.
Mr. SIMPSON. I announce that the Senator from Minnesota [Mr.
Durenberger] is necessarily absent.
The PRESIDING OFFICER. Are there any other Senator in the Chamber who
desire to vote?
The result was announced--yeas 58, nays 38, as follows:
[Rollcall Vote No. 49 Ex.]
YEAS--58
Akaka
Baucus
Biden
Bingaman
Boren
Boxer
Bradley
Breaux
Bryan
Bumpers
Byrd
Campbell
Chafee
Conrad
Daschle
DeConcini
Dodd
Dorgan
Exon
Feingold
Feinstein
Ford
Graham
Harkin
Hatfield
Heflin
Hollings
Inouye
Jeffords
Johnston
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Mathews
Metzenbaum
Mitchell
Moseley-Braun
Moynihan
Murray
Nunn
Packwood
Pell
Reid
Riegle
Robb
Rockefeller
Sarbanes
Sasser
Shelby
Simon
Specter
Wellstone
Wofford
NAYS--38
Bennett
Bond
Brown
Burns
Coats
Cochran
Cohen
Coverdell
Craig
D'Amato
Danforth
Dole
Domenici
Faircloth
Gorton
Gramm
Grassley
Gregg
Hatch
Helms
Hutchison
Kassebaum
Kempthorne
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Pressler
Roth
Simpson
Smith
Stevens
Thurmond
Wallop
Warner
NOT VOTING--4
Durenberger
Glenn
Mikulski
Pryor
So, the nomination was confirmed.
Mr. KENNEDY. Mr. President, I move to reconsider the vote and I move
to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to the consideration of the following nominations which the
clerk will report.
____________________