Businesses Want Labor Board Democrat Out (1)

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By Chris Opfer and Hassan A. Kanu

Business lobbyists are urging the White House not to give former National Labor Relations Board Chairman Mark Gaston Pearce (D) another stint on the board when his term expires next month, sources tell Bloomberg Law.

“The management community is uniform that Mr. Pearce should not be renominated,” Littler Mendelson attorney Michael Lotito told Bloomberg Law.

Pearce’s critics say that he pushed the board’s labor policy aggressively in favor of unions and workers during his six years on the board. That includes decisions to expand joint employer liability for affiliated businesses and crack down on general employment policies as infringing on collective activity rights. They’re concerned that Pearce could get another shot as board chairman if Democrats regain control of the White House in 2020.

“We’ve communicated to the White House at every level that we oppose Pearce’s renomination,” Matt Haller, a senior vice president for the International Franchise Association, told Bloomberg Law. “That’s the low hanging fruit as far as improving labor policy for businesses and our members.”

A White House spokesman declined to comment.

The board’s Republican majority is likely to continue overhauling a wide range of decisions issued during the Obama administration, regardless of whether Pearce gets another five years in his seat. But by swapping in a different Democrat—or leaving the seat open—the Trump administration could tamp down opposition to those moves and quiet some of the infighting sources say has been going on among members since Republicans took control of the board last year.

Sources told Bloomberg Law that Pearce wants another term on the board and has the support of Senate Minority Leader Chuck Schumer (D-N.Y.). Although the White House started the process of vetting Pearce for renomination earlier this year, sources said the move appears to have been put on hold at the urging of the business community.

Pearce told Bloomberg Law via email that his job is to enforce federal labor law, which was created to address an inequality in bargaining power between employers and their workers.

“As a Board Member I am charged with the responsibility of ‘encouraging the practice and procedure of collection bargaining’ and ‘protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection,’” Pearce said, quoting the National Labor Relations Act. “I have done my best to meet that responsibility.”

The board and its 1,400 or so employees monitor union elections and police employers for unfair labor practices, such as retaliating against striking workers or interfering with a worker’s right to discuss collective activity on the job. The NLRB, which often sets policy by deciding on individual labor-management disputes, is essentially the sole enforcer of federal labor law because businesses, workers, and unions can’t pursue cases directly in court.

Seats Previously Left Empty

Pearce’s second term on the board is set to expire Aug. 27. He will leave the board at that time if he hasn’t been renominated, even if President Donald Trump hasn’t nominated someone else to fill the Democrat-dedicated seat.

“Filling the position would be a surprise,” former NLRB Chairwoman Wilma Liebman (D) told Bloomberg Law. “The notion of holding a vacancy has long precedent, including under just about every president.”

The Obama administration left Republican Member Harry Johnson’s seat open for two years after Johnson left the board. The NLRB has traditionally required at least three votes, but not necessarily all five board seats to be filled, to overturn precedent in a case decision.

“They would still have a functional quorum with that seat vacant,” Greg Mourad, a lobbyist for the National Right to Work Committee, told Bloomberg Law. “I can’t imagine what kind of leverage he would have.”

The board quickly overturned a handful of significant Obama-era decisions after Republicans regained control of the NLRB last year. That includes reverting to a more restricted approach to determining whether one business can be considered a joint employer of another’s workers for unionization purposes.

Pearce wrote the board’s majority opinion in 2015 when the NLRB expanded joint employer liability to situations in which a business exerts indirect control over another’s workers. The move was a hallmark of the Obama administration’s labor agenda, hailed by advocates as helping workers cut through complicated contractual relationships and have a real seat at the bargaining table. The Republican-majority board overturned that decision in December, but it then quickly scrapped the ruling as a result of conflict-of-interest concerns stemming from Member William Emanuel’s (R) participation in the case.

“This is an incredibly important issue,” former NLRB member Sharon Block (D) told Bloomberg Law of the joint employer decision. “It’s at the heart of having the law continue to be meaningful and to fit the realities of the workplace.”

The debate over Pearce’s renomination comes as Trump’s renomination of Chai Feldblum for a Democrat seat on the Equal Employment Opportunity Commission has hit a snag in the Senate. Four Republican senators have effectively placed a hold on Feldblum’s nomination for a third term, citing concerns about her position on how religious freedom intersects with sexual orientation and gender identity protections under the law. Democrats have in turn held up Trump’s nominations for two Republican EEOC seats—and Trump’s pick for the agency’s general counsel—by refusing to budge on mandatory floor debate time unless Feldblum is part of a package deal.

But Democrats don’t seem to have the same type of bargaining power when it comes to Pearce.

“There’s nothing Schumer could do or say to get Mr. Pearce renominated unless it’s part of some bigger deal,” Lotito told Bloomberg Law.

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