Fresh from his Senate confirmation, David Michaels, the new Assistant Secretary of Labor for Occupational Safety and Health, made his maiden speech as OSHA Administrator Wednesday. He spoke at a conference sponsored by the National Institutes of Occupational Safety and Health, an address entitled, “Making Green Jobs Safe: Integrating Occupational Safety & Health into Green and Sustainability.” Excerpt:

I think it’s very fitting and proper that my first speech as Assistant Secretary should address the issue of green jobs - what green jobs mean for the earth, for our economy and for American workers.

We’re all aware of the job opportunities that green jobs offer, and in the present economy, new technologies with the potential of new jobs are especially welcome.

Secretary of Labor Hilda Solis recently announced nearly $55 million in green job grants, authorized by the American Recovery and Reinvestment Act of 2009. These grants will support job training and labor market information programs to help workers, many in underserved communities, find jobs in expanding green industries and related occupations.

Is it fitting, really, that the first comments by a powerful federal regulator single out one segment of the economy for implicitly favored treatment? No one really knows what “green jobs” or “green industries” are; subjective definitions and standards are enemies of consistent regulation — and the rule of law, for that matter.

To be fair, the occasion was a forum dedicated to greenness, so comments to the topic were to be expected. But when speaking about the broader economy, Michaels offers even more of this subjectivity and invidiousness. This is a striking statement, coming as it does from a powerful regulatory and enforcement official who should embrace fairness and objectivity.

Where, and when possible, OSHA must move ahead on rulemaking for urgently needed standards - and to create good standards, we’ll need the input of scientists and engineers, academics, students and workers. We’ll also need allies in the progressive business community who will say “yes” to sensible changes and participate in the rulemaking process with constructive comments and insight.

Those comments divide employers into good business and bad business, progressives and reactionaries, those to be rewarded, those to be punished. In other words, “If you go along with us, support our proposals with our ’sensible changes’ you’re progressive and good, and we’ll get along just fine. If you disagree with our proposals, object to our ’sensible changes,” well, then, we won’t pay any attention to you. If you’re lucky. If you’re not, we might pay a lot of attention to you, and you won’t like it a bit.”

We would have expected a top official in the jobs-minded Obama Administration and Department of Labor to begin his tenure with speech that says, “We are going to work with everyone to create good jobs in a safe and healthy workplace.” Instead, we get a speech that told employers to fall in line with whatever OSHA says or pay the consequences.

The Senate yesterday evening confirmed the nomination of David Michaels to be Assistant Secretary of Labor for Occupational Safety and Health, i.e., administrator of OSHA.

His approval came on a voice vote as a part of a package of nominees. So the head of a major sub-cabinet agency important to employees and employers both was confirmed with neither a committee hearing nor a Senate debate. Accountabil……..

Congratulations and best of luck, and remember: If jobs creation is the priority, it’s best to work WITH jobs creators — the employers.

Earlier posts.

From Michael Shaw at HealthNewsDigest.com, “It’s Time To End The Anti-BPA Hysteria,” covering numerous examples of the bad science, hyped reports, campaigning journalism and fear-mongering on the useful plastics additive, Bisphenol A.

Finally, “hysteria” is the best way to refer to the posture of Consumer Reports on BPA, as presented in the December, 2009 issue. The piece “Concern over canned foods” is rife with errors, but space allows me to mention only two.

Consumer Reports claims that dietary exposure to BPA is close to levels shown to cause harm in animal studies. Yet, the lowest oral exposures to BPA that cause adverse effects in animals are 500,000 times higher than typical human exposure.

Consumer Reports conflates oral ingestion data with animal studies in which BPA was directly injected into the blood, thus bypassing all metabolic pathways. As author Trevor Butterworth reminds us, every regulator and risk assessment in the world has rejected injection studies as a relevant method for assessing human risk from BPA, since our exposure to the chemical is through ingestion. Large, statistically rigorous, multi-generational reproductive toxicity studies have failed to reproduce the findings of injection-based studies.

Indeed, an EPA-funded rodent study recently published in Toxicological Sciences found that low-dose exposures of bisphenol A (BPA) showed no effects on the range of reproductive functions and behavioral activities measured.

See also this summary of a new EPA report from STATS, non-profit, non-partisan Statistical Assessment Service at George Mason University, “New independent study by EPA refutes BPA risk“: “[A] second independent study by the Environmental Protection Agency, published in the leading toxicological journal, Toxicological Sciences, has failed to find evidence of the low-dose hypothesis claimed by environmental activists and widely reported in the media.”

Unfortunately, as former Ohio Treasurer Ken Blackwell has written, a BPA scare can help drum up business, for trial lawyers especially. See “A Chemical Scare Campaign Is Good Business for Some.”

The public would be well served by a high-profile, dispassionate assessment of these issues. We suggest a Senate hearing as venue.

David Michaels, President Obama’s nominee to head the Occupational Safety and Health Administration, has been a prominent promoter of the “BPA is DANGEROUS” school of thought from his position as director of the Project on Scientific Knowledge and Public Policy.  A headline on a piece Michaels wrote for The Washington Post on BPA proclaimed, “If Two Similar Studies Completely Disagree, Look at How the Funders Framed the Issue.”

Agreed, SKAPP was formed with money from the trial lawyer industry and is supported by George Soros’ Open Society Institute. And Business Insurance reports, “Surging legal action over BPA targets manufacturers.”

So, yes, a Senate hearing would be a good place to explore the issues surrounding BPA, science and political advocacy as front for the litigation industry. How about at the Senate HELP Committee’s confirmation hearing for Michaels?

Alas, too late. Chairman Tom Harkin pushed through Michaels’ committee approval with no hearing.

The Senate Health, Education, Labor and Pensions Committee is scheduled to vote today on President Obama’s nomination of David Michaels to be Assistant Secretary of Labor for Occupational Safety and Health (OSHA). Despite Michaels’ controversial writings on science, litigaton and the Second Amendment, Chairman Tom Harkin (D-IA) did not schedule a committee hearing on his nomination allowing for a public exploration of his views.

The business meeting starts at 10 a.m.

For previous posts on Michaels, go here.

UPDATE (10:10 a.m.): The first item on the committee’s schedule is mark-up of S. 510, the FDA Food Safety Modernization Act. Sen. Harkin says he hopes to work through the bill by noon.

UPDATE (11:13 a.m.): With no discussion, the Committee passes out the nomination of Michaels to the Senate floor. Sen. Tom Coburn (R-OK) and Sen. Richard Burr (R-NC) voted no.

UPDATE (3:15 p.m.): Hans Bader of the Competitive Enterprise Institute revisits the many red flags in Michaels’ record. On the other hand, the American Public Health Association hails the committee action and urges quick confirmation by the full Senate.

David Michaels has been nominated to serve as the Assistant Secretary of Labor for Occupational Safety and Health. Although the NAM and many other employer groups have urged the Senate HELP Committee to hold a formal hearing on his nomination, the Committee appears to be moving forward with no such public inquiry. On Wednesday the Committee will consider his nomination in a business meeting with a vote likely to follow.

Senator Harkin (D-IA) who chairs the Senate HELP Committee has expressed his commitment to adhere to long standing Committee precedent and tradition. He recently asserted during the executive session that considered the nomination of Craig Becker to serve on the National Labor Relations Board that it “has been the tradition in our Committee, we will vote on this group of nominees en bloc.” He added that it’s uncommon for the Committee to hold hearings on individual nominees to the NLRB.

If tradition is the determining factor, then the Chairman should hold a hearing on Michaels. As we noted in a joint letter from many employer groups to the Committee:

Finally, nominees for OSHA Assistant Secretary have traditionally had to appear at a hearing, even when the administration and the Senate were controlled by the same party. With the aggressive posture for OSHA being signaled by the Obama administration, Professor Michaels’ nomination should be treated no differently than the other nominees who were given a hearing.

The Senate Health, Education, Labor and Pensions Committee has scheduled an executive session Wednesday, Nov. 18, to vote on the nomination of David Michaels to become Assistant Secretary of Labor for the Occupational Safety and Health Administration, i.e., OSHA administrator. No hearing, no questioning, just a vote.

Many business groups and others have sought a confirmation hearing on Michaels to explore his views on key issues. For example, Michaels has headed the Project on Scientific Knowledge and Public Policy (SKAPP), created with money the trial lawyers funneled to it from the silicone breast implant settlement. SKAPP’s views closely align with those of the plaintiffs’ bar, especially in Michaels’ attack against the Daubert v.Merrell Dow Pharmaceuticals that put limits on the introduction of “junk science” into civil suits. (See this 2003 discussion at Overlawyered.com.) Michael’s book, Doubt is Their Product, exudes a world view in which business is always malign and intellectually corrupt.

Defenders of Second Amendment rights have also been alarmed at Michaels’ view of guns as a workplace safety issue warranting strict regulation. See Dave Kopel, “How President Obama’s latest anti-gun appointee—proposed OSHA Director David Michaels—could place sweeping restrictions on your Right to Keep and Bear Arms.”

The National Association of Manufacturers is a member of the Coalition for Workplace Safety, which on October 8 sent a letter to the HELP Committee asking for a hearing. Excerpt:

Because workplace safety is everyone’s concern and we are committed to working with OSHA to meet our shared goal of improving safety in the workplace, we believe a hearing is warranted to thoroughly explore Professor Michael’s views on key areas of OSHA operations, the direction the agency will take, and how his professional career might influence the decisions he would make in this position.

The letter notes that nominees to head OSHA have traditionally appeared before the committee for a confirmation hearing. Indeed, President Bush’s nominee, Ed Foulke, testified in a hearing on January 31, 2006.

It’s been a week since Chairman Tom Harkin’s press secretary offered this excuse for not scheduling a hearing: “If we had a hearing on every single nominee, nothing would ever get done.” We await a more substantive explanation the committee abandoning accountability, but have our doubts one will be forthcoming.

It looks like Chairman Tom Harkin of the Senate Health, Labor, Education, and Pensions Committee is going to push through the controversial nominee to head the Occupational Safety and Health Administration without a hearing. The public — employers and employees alike — will have to be satisfied with David Michaels’ answers to written questions.

Accountability is the loser. Almost all nominees of all political and philosophical leanings regard the written questionnaires as an exercise in avoiding specific answers. So do the Senators. You don’t want to provide anything in writing that will be controversial or indicate a radical point of view that might alarm a Senator.

Occupational Health and Safety has the report, “HELP Committee Decides to Bypass Full Hearing for Potential OSHA Chief,” including an unpersuasive explanation from Harkin’s press secretary, Bergen Kenny:

“If we had a hearing on every single nominee, nothing would ever get done,” Kenny said. “We wouldn’t be able to fill all the positions that need to be filled.”

Funny, President Bush’s OSHA nominee went through a full confirmation hearing in January 2006.

Earlier posts on Michaels’ nomination.

Diane Rehm is celebrating 30 years as host and executive producer of the Diane Rehm Show on local NPR station, WAMU.

And even though it’s a little odd to offer praise on a day a substitute is hosting her program, Ms. Rehm really does book excellent guests. Today, with Frank Sesno filling in, the program offers Secretary of Labor Hilda Solis and Margaret Atwood. Impressive.

Secretary Solis is on in the first hour, 10 a.m. If we had one question to pose to her it would be: Supporters of the Employee Free Choice Act say the legislation is necessary because the process of recognizing a union is broken and stacked against the workers. Yet unions have recently won two-thirds of workplace elections. (See this March 10 Shopfloor.post.) Doesn’t this fact undermine a core argument in favor of EFCA?

If we had a second question it would be: President Obama’s nominee to head the Occupational Safety and Health Administration, David Michaels, is very controversial for many reasons. including his views on the admissability of junk science into trials and his organization’s (SKAPP) close alignment with the interest of the trial lawyers. As an Assistant Secretary of Labor, he would work for you, and so here’s the question: Shouldn’t Michaels at least go before the Senate HELP Committee for a confirmation hearing to address these issues?

We offer them in sincere hopes of substantive policy discussions.

An editorial in Sunday’s The Washington Times, “Occupational corner-cutting”:

For an administration and Congress that promised to be the most transparent and ethical in history, it turns out that failing historical standards is an occupational hazard.

The latest subversion of procedural fairness is set for Wednesday, when the Senate Committee on Health, Education, Labor and Pensions is set to approve a host of executive-agency nominees without the public benefit of a hearing. The most troubling nominee, one for whom a hearing should be mandatory, is David Michaels of Maryland to head the Occupational Safety and Health Administration.

The editorial cites a letter sent to the Senate HELP Committee from a broad cross-section of trade associations, including the National Association of Manufacturers, asking for a hearing. The letter from the Coalition for Workplace Safety is available here.

See also these earlier posts on Michaels and the OSHA nomination.

The Senate Health, Education, Labor, and Pensions Committee has scheduled its mark up of pending nominations for next 10 a.m. next Wednesday.

Among the nominees expected to be acted on — and usually, that means approved — are Craig Becker, Mark Pearce and Brian Hayes to be members of the National Labor Relations Board, and David Michaels to be Assistant Secretary of Labor for Occupational, Safety and Health, i.e., the head of OSHA.

None of these nominees has had or is scheduled to have a Senate confirmation hearing at which they could explain their views of the job and the proper role of the government vis a vis the private sector.

Becker’s nomination has provoked consternation in the business community. Yesterday, The Wall Street Journal editorialized on him as “Acorn’s Ally at the NLRB,” noting the close ties between the union where he has been associate general counsel, the SEIU, and the radical political activist group, ACORN. More to the point, his views of the NLRB’s proper role are outside the mainstream:

President Obama nominated Mr. Becker in April to the five-member NLRB, which has the critical job of supervising union elections, investigating labor practices, and interpreting the National Labor Relations Act. In a 1993 Minnesota Law Review article, written when he was a UCLA professor, Mr. Becker argued for rewriting current union-election rules in favor of labor. And he suggested the NLRB could do this by regulatory fiat, without a vote of Congress.

Just yesterday the NAM and 27 other trade associations sent a letter to the committee’s leadership asking for a hearing on Becker.

As for the OSHA post, earlier this month a group of industry, farm (correction: ag processing) and retail trade associations also sent a letter to the committee request confirmation hearings on Michaels. The letter stated:

Michaels has advocated for more government regulation, even when the available science
and data to support such regulations is inadequate or unsettled. He has also attacked the landmark, unanimous Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, which stands for the proposition that scientific evidence in litigation must meet certain standards to be admitted. Michaels has also been the beneficiary of product liability actions which have been shown to be without merit. Finally, nominees for the OSHA Assistant Secretary have traditionally been subject to a hearing before their confirmations moved forward. We see no reason why Professor Michaels should be an exception. Accordingly, as detailed below, we believe his views warrant a hearing and thorough examination before his nomination can proceed.

The NAM had also sent its own letter on the Michaels’ nomination. And, as noted above, President George W. Bush’s OSHA nominee went through a full confirmation hearing in January 2006 so business isn’t asking for anything unusual.

In both cases — Becker and Michael — we’re surprised that the committee did not believe nominees to these important positions should be asked to explain their beliefs and governing philosophies in a public forum. The two men will soon wield great power over the workplace world, and a confirmation hearing puts them on the record, letting the public better judge their actions once in office.

The HELP Committee is busy, we know, but not so busy that it should eschew its responsibilities of advice and consent. The White House could play a constructive role here, demonstrating its adherence to high standards of transparency and accountability if it asked the HELP Committee to take another week and conduct the confirmation hearings.