Trump Nominates Pearce for Third Term on Labor Board (1)

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By Hassan A. Kanu and Tyrone Richardson

President Donald Trump has nominated Mark Gaston Pearce (D) for another term on the National Labor Relations Board.

Republicans retain the majority of seats on the five-member partisan panel, which gives the party greater discretion over workplace policy coming from the NLRB. But Pearce’s renomination is nonetheless a significant and surprising victory for worker advocates and Democrats. The White House made the move despite sharp and near-unanimous criticism of Pearce by Republicans and the business community, and an established practice of leaving seats open in order for an administration to keep their party’s majority.

“Practically speaking, the renomination will have a substantive impact on Board procedures and decisions if Pearce is confirmed by the U.S. Senate for another term,” Jerry Hunter, a former Republican NLRB general counsel, told Bloomberg Law Aug. 29. Hunter is now a management-side attorney at law firm Bryan Cave.

The board typically delegates authority to decide individual union elections and unfair labor practice complaints to three of the sitting members. That means Pearce will be able to team up with colleague Lauren McFerran to effectively form a two-member Democratic majority in some cases. There’s also opportunity for a Democratic majority in cases where the Republican chairman and other two members have a conflict of interest.

Pearce received an equal amount of partisan support from unions and worker advocates.

Pearce has “worked with his colleagues to address many pressing and difficult issues arising out of the changing nature of work and the workplace over the last eight years,” Craig Becker, AFL-CIO general counsel, said Aug. 29 in an email to Bloomberg Law.

“We urge the Senate to honor the bi-partisan tradition that has developed concerning the filling of Board seats by promptly confirming Mark so that the Board can once again be fully staffed,” Becker said.

Agreement Reached?

Pearce originally was nominated by President Barack Obama , and served as board chairman for more than five years in the Obama administration. He was a key advocate for Obama workplace policies, such as expanding joint-employer liability for affiliated businesses in franchise, staffing, and other contractual relationships.

The White House made the renomination announcement late Aug. 28, just one day after Pearce ended his second term on the five-member panel tasked with enforcing the National Labor Relations Act.

Bloomberg Law recently reported that the White House and Senate leaders were in talks for a deal that would give Pearce a third term in exchange for Democrats agreeing to waive waiting periods and confirm certain pending nominations for other positions. That included potentially moving nominees still waiting to be confirmed for Labor Department positions.

The Senate Aug. 28 also agreed to confirm dozens of Trump’s nominees, including about 15 federal district judge nominees and assistant secretaries for agencies like the Energy Department. Other labor-related picks whose nominations have stalled were apparently not included in the day’s action and agreements.

Congressional members and staffers declined to comment on any agreement involving Pearce’s renomination specifically.

Republican senators have already voiced reservations about another term for Pearce, including Sen. Johnny Isakson (R-Ga.), chairman of the HELP Committee’s Employment and Workplace Safety Subcommittee.

Isakson’s office has told Bloomberg Law that there are issues with Pearce “based on past decision he’s made while serving on the board.”

Business Groups Continue Opposition

Business groups continue to oppose Pearce’s confirmation, despite the talk of a bipartisan agreement between lawmakers.

“As Chairman, Pearce spearheaded possibly the most partisan NLRB to date and tilted labor relations far in favor of labor unions over workers and job creators,” Trey Kovacs, a policy analyst with the Competitive Enterprise Institue, told Bloomberg Law in an Aug. 29 email.

“Renominating Pearce directly contradicts the stated goals of this administration to ease burdensome regulations and create jobs,” Kovacs said. CEI is nonprofit think tank dedicated to advancing “limited government” and “free enterprise” principles.

Senate confirmation is the last step in the nomination process. The White House has been pushing to seat personnel who can help reverse various Obama-era moves and help put the president’s stamp on policy.

The Republican-led board already has started to reverse a number of decisions from the Obama years. Chairman John Ring (R) recently announced that the NLRB is working on a proposed regulation to update the board’s joint employer liability policy.

Pearce would serve a five-year term if confirmed.

“With Mark Pearce and Member [Lauren] McFerran on the Board, American workers will know that they have a voice on the Board trying to make sure that the purpose of the Act is not ignored—to protect the right of workers to stand together,” Sharon Block, a former board member and director of Harvard Law School’s labor and worklife program, told Bloomberg Law.

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