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By Chris Opfer
A key architect of Obama labor policy is likely leaving the Trump administration, giving the president’s critics one less line of defense against a wide range of changes to workers’ rights.
Mark Gaston Pearce (D) in his role as National Labor Relations Board chairman used a law establishing union rights to expand protections for nonunion workers. He was removed from the lead post when Republicans took control of the five-member board last year, and has since been working behind the scenes to try to slow policy shifts in favor of businesses.
Pearce in more than eight years on the board has cemented a reputation as a champion for workers’ rights and a thorn in the side of business advocates.
“This was a very important, trend-setting chairman who really moved the board toward interpretations that, while admittedly expansive, it seems to me were much needed and appropriate,” William Gould , a Democrat and former NLRB member, told Bloomberg Law. “I think he made a substantial contribution to the development of the law and the prestige of the agency.”
Pearce is unlikely to be tapped for another stint on the board before his term ends Aug. 27, sources tell Bloomberg Law, thanks to strong opposition from business advocates and the National Right to Work Committee. That would leave one Democrat and three Republicans on the NLRB.
“You expect the Democrat to be very pro big labor, but this guy is so far beyond the pale,” NRTW Committee lobbyist Greg Mourad told Bloomberg Law.
The board is already dismantling Obama-era precedent on everything from who’s an employer and what types of workers should be lumped together in a collective bargaining unit to whether a business can ban employees from using phone cameras on the job. Its minority members have little power to stop those changes, but Pearce is widely said to be slowing some of the overhaul by taking his time with dissenting opinions and through other procedural back channels.
He was also part of a panel that quickly scrapped the board’s biggest decision in recent years—limiting one business’s responsibility to negotiate with a franchisee or staffing company’s workers as a “joint employer"—following conflict-of-interest questions related to another board member’s prior life as a management lawyer.
That was enough to mobilize the business community against Pearce’s potential renomination earlier in the summer when the White House began vetting him for another five years in a Democrat-designated seat. Employers are concerned that Pearce would have the opportunity to take back the NLRB reins if President Donald Trump isn’t reelected in 2020.
Pearce and his supporters are still holding out hope that last-minute dealmaking in the Senate could get him renominated in exchange for a Democratic agreement to move other Trump administration nominations. In the meantime, companies, workers, and unions with business before the board are wondering if his waning days at the NLRB will bring a slew of decisions that often come when a member leaves.
In more than five years at the board’s helm, Pearce expanded nonunion workers’ rights by focusing in part on a section of the National Labor Relations Act that gives all employees the power to engage in “concerted activities” for “mutual aid or protection.”
“He made a significant contribution to the Obama board’s legacy by expanding the view of what the NLRA covers and more particularly what is protected concerted activity,” Barry Kearney , a management attorney and former NLRB associate general counsel, whose career with the agency spanned five decades, told Bloomberg Law. “That probably had the biggest impact on working people because the majority of them aren’t unionized.”
Fewer than 7 percent of private sector workers are covered by a collective bargaining agreement, according to the Labor Department.
Pearce’s Democrat-majority board found in a series of decisions that businesses committed unfair labor practices by imposing various workplace rules that seemed neutral on their face, but could be interpreted to infringe on workers’ rights. The board found general workplace civility requirements and “no photos” rules in Las Vegas casinos illegal, as well as confidentiality requirements in sexual harassment investigations.
Pearce also helped expand liability for some of those practices to larger companies that use staffing, franchise, and other contractual relationships.
In its 2015 Browning-Ferris Industriesdecision, the board said a company that exerts even indirect control over workers—such as through brand management standards imposed on franchisees—can be considered a joint employer. That finding raised concerns from McDonald’s and Microsoft, among other companies, about being liable to and required to collectively bargain with someone else’s workers.
The Pearce board in the Browning-Ferris decision signaled that “it was going to take a closer look at employers that seem like they’re not related on the surface,” Cornell University labor professor James Gross told Bloomberg Law. That had “real potential to be a very important decision as contingent and part-time workers continue to grow,” Gross said.
The board is currently working on a proposed joint employment regulation. The new rule is expected to return to a “direct control” requirement for joint employment.
During his chairmanship, Pearce continued the NLRB’s work on a regulation to streamline union elections. Business groups dubbed the move the “ambush” rule because it sped up the process in many situations.
Pearce wrote a 2012 decision in which the board said companies can’t compel workers to sign arbitration agreements that require them to waive their right to bring class actions against their employers. The Supreme Court shot down that approach in July.
Critics point to the justices’ decision and other appeals court rulings overturning the board as a sign that Pearce went too far. Some Pearce-era board rulings that went by the wayside recently included its finding that certain FedEx truck drivers are employees who have the right to unionize, and its expansion of a worker’s right to have a union steward present during disciplinary actions.
The current board’s Republican-majority started scaling back much of the Pearce and other Democratic precedent last year. The NLRB has asked the public to weigh in on whether it should revise the union election rule and reconsider a decision giving workers the right to use company email systems for union purposes. The board also overturned a 2004 decision on neutral workplace rights, undoing a number of Pearce-led decisions in one fell swoop.
With less than two weeks left on Pearce’s term, labor board watchers are keeping a close eye on the dockets for what could be a flurry of activity. The NLRB often in recent years has pushed out decisions at the end of a departing member’s term to avoid having to restart the review process.
“He’s a creative guy,” Littler Mendelson management attorney Michael Lotito told Bloomberg Law. “Whatever he thinks is going to maximize the advantage of the position he wants to espouse is possible.”
Pearce in recent weeks has signed onto a number of 3-0 decisions in cases that had been on hold pending the Supreme Court’s class-action waiver ruling. He’s also been involved in unanimous decisions rejecting the claim that NLRB administrative law judges weren’t properly appointed.
The board is expected to tackle tougher issues soon, such as implementing the new workplace rules decision, reconsidering the requirements for workers to drop union representation, and taking another look at efforts to “block” union elections or decertification votes. Some board watchers said maybe Pearce will choose to sit those out.
On the other hand, Pearce and fellow Democrat Lauren McFerran have penned a number of blistering dissents that could lay the groundwork for later position changes by the board if Republicans lose control after the 2020 elections.
“Today’s dissent could be tomorrow’s majority opinion,” Lotito said.
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