Trump Renominates Pro-Union Advocate to Labor Relations Board

Late last night, the White House cut a deal with Senate Democrats to renominate Mark Pearce to the National Labor Relations Board, according to Law 360. As Bloomberg BNA reported earlier in the week, the deal “would give Pearce a third term in exchange for Democrats agreeing to waive waiting periods and confirm certain pending nominations.”

Mark Pearce has been a member of the NLRB for eight years and was chairman during the Obama administration. During this time, Pearce displayed blatant pro-union bias when issuing decisions and developing labor policy.

As chairman of the NLRB, Pearce presided over the most partisan Board on record, with the agency overturning more than 4,000 years of NLRB precedent. Particularly troublesome policies implemented during Pearce’s time as chairman include:

1. The Board’s 2015 decision in Browning-Ferris, overturned longstanding joint-employer precedent that required one company to exercise direct and immediate control, and to do so in more than a limited and routine manner, over essential terms and conditions of another employer’s workforce, in order to establish a joint-employer relationship. The Browning-Ferris standard broadly expanded joint-employer liability, under which a joint-employer relationship could be established when one employer exercised indirect control in a limited or routine manner or possessed unexercised potential control over workplace conditions. Such a broad and vague standard created immense uncertainty and reduces job creation.
2. “The Ambush Election rule overhauled how union elections are conducted in order to ease organizing campaigns. Under this rule, workers have very little time to educate themselves on the pros and cons of unionization. It does so by drastically shortening the time period between when a union files for election and a vote is conducted to possibly as little as ten days. This ensures unions have ample time to share their side of the story with employees, and can then file for an election when the time is right. Worse, ambush elections require employers to hand over workers’ private information—personal telephone number, email address, and work schedule—without giving them the option to opt-out of this information sharing. This invasion of privacy runs the risk of increased identity theft, intimidation, and harassment of workers around the country. Congress should pass legislation that ensures workers receive ample time to contemplate the important decision on whether to unionize their workplace and protects the private information of workers.”
3. The NLRB overturned longstanding legal precedent when it ruled a television station must continue to deduct union dues from the paychecks of workers who authorized such deductions even though the collective bargaining agreement those dues supported has expired.

Pearce’s predisposition to favor Big Labor clouded his judgement in decisions and courts frequently called him out for it. As we at the Competitive Enterprise Institute noted in a coalition letter urging President Trump not to renominate Mark Pearce for a third term:

Pearce has exhibited such bias in favor of unions that federal judges have denounced Pearce’s rulings on several occasions. In one case, a Board majority, including Mark Pearce, issued a decision that the United States D.C. Circuit concluded was “more disingenuous than dispositive; it evidences a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence—disregarding entirely the need for reasoned decisionmaking. The Board totally ignores facts in the record and misconstrues the findings of the ALJ.”

Though nominating Pearce to NLRB is not a guarantee that he will be confirmed, it does present an unnecessary risk.

First, it is possible that Democrats win back the Senate in November. If this occurs, then Pearce will certainly be fast-tracked and confirmed to the NLRB. The election loss would lay waste to any plan by Senate Republicans to slow play or simply not move on Pearce’s confirmation.

Second, there is inherent risk in having two Democrat members on the NLRB. As I noted previously, Democrats and unions have lodged several baseless ethics complaints against Republican NLRB members that call for them to recuse themselves from ruling on cases. This strategy has been successful:

Since the NLRB is currently composed of five members—three Republican and two Democrats—if Chairman Ring and member Emanuel recuse themselves then the Democrats have a majority. In effect, these baseless ethics complaints could make what is supposed to be a Republican majority Board into a majority Democratic NLRB.

I also wrote in a recent statement: “Hopefully the Senate take a close look at Pearce’s record at the NLRB and quickly discover he is aggressively pro-union and far from the impartial arbitrator that Congress intended NLRB members to be.”