Conservative and pro-business groups are urging the White House to abandon a handshake agreement President Trump struck with Senate Democratic leader Chuck Schumer, D-N.Y., to fill an open slot on the National Labor Relations Board, the main federal labor law enforcement agency. It is a case, they argue, where Schumer may have proven he is better at the art of the deal than Trump.
Schumer wants Trump to renominate longtime NLRB member Mark Gaston Pearce, who has served on the board since 2010. Keeping Pearce wouldn’t upset the board’s current 3-2 GOP majority created by Trump’s previous NLRB appointees, so keeping Pearce may seem like a small price to play if it can get Schumer to pay ball on the other White House pick.
But in fact, conservatives say, keeping Pearce could effectively undo all of Trump’s previous picks, leaving the board as if President Obama was still in, a period that the groups see as uniquely pro-union and disruptive to the economy.
Two of President Trump’s picks for the NLRB, Chairman John Ring and board member William Emanuel, are facing considerable pressure to recuse themselves from a broad swath of the board’s cases. Should Pearce continue with the board, it could result in major cases being heard by a 2-1 Democratic majority. Pearce would have a “vested interest” in slowing down any effort to undo the Obama policies.
“Mark Pearce … was behind a lot of the reversals of long-standing precedents during the Obama administration, so there is a lot of concern about him,” said Glenn Spencer, senior vice president for the employment policy at the Chamber of Commerce.
Some conservative activists, speaking off the record, concede their message may not be getting through. Labor and employment issues involve a narrow field of law often not well understood by Republican lawmakers or others in the GOP. Democrats, on the other hand, being close to the labor movement, better understand it, and thus are able to out-maneuver their opponents on issues relating to it. To the activists, Pearce is one of those cases.
“Pearce is a man who really understands the board and knows how to work it, knows how to push the boundaries of its reach,” said Matt Patterson, field director of the nonprofit California Policy Center and a conservative activist.
The five-member NLRB is a quasi-independent agency. The board’s members are appointed by the president and confirmed by the Senate. It currently has a controlling 3-1 GOP majority, with one seat open since Pearce’s term expired in late August.
By tradition, the president picks the majority but allows the opposing party to have the remaining two seats. Trump White House officials see keeping Pearce as a way to get other nominees through the Senate.
“It is standard practice for presidents to nominate members of the other party to independent boards,” Lindsay Walters, deputy White House press secretary, told the Washington Examiner. “It also is standard practice for the Senate to confirm executive branch and judicial nominees. We continually urge Senate Democrats to end their obstruction.”
Schumer’s office did not respond to a request for comment.
Patterson argues it is a worse trade-off than the administration realizes.
“There’s a reason why the Democrats want Pearce to stay on the board. They hope that Trump loses in 2020 and that Pearce can become chairman again,” Patterson said. “Chuck Schumer knows what he is doing.”
Pearce, along with another Obama-era appointee, board member and later general counsel, Richard Griffin, jointly transformed the board, once considered a sleepy backwater among federal agencies, through inventive reinterpretations of existing rules and regulations. Griffin stepped down in 2017. Pearce, for example, pushed to have the NLRB weigh in extensively on corporate employee manuals, a move that allowed the board to pursue cases against companies even when there wasn’t a union issue involved.
He is also considered the architect of the board’s decision in Browning-Ferris, a 2014 case that vastly expanded corporate legal liability by potentially putting companies on the hook for any violations at other businesses they had dealings with, under a doctrine called “joint employer.”
The board, now with a Trump-appointed majority, voted to overrule Browning-Ferris in a December case, called Hy-Brand. However, the board abruptly vacated the decision earlier this year after its inspector general released a report saying that board member William Emanuel should have recused himself based on ties his former lawyer had to the case. Emanuel has rejected the argument, calling the Office of the Inspector General report “absurd.”
The case has prompted unions and Senate Democrats with a keen interest in labor issues, such as Sen. Elizabeth Warren, D-Mass., to call for a stricter standard for recusals at the NLRB for both Emanuel and board chairman John Ring, both of whom worked for prominent management-side law firms. The board requires a two-year cooling-off period before a new member can weigh in on a case involving their former firm.
Emanuel was confirmed last September and Ring only in August. Pearce, on the other hand, has served on the board since 2010 and has long passed the point where he would be called to recuse in cases. Thus, there could be in cases where Ring and Emanuel were forced to step aside and Pearce, should he stay, would form a 2-1 Democratic majority among the remaining members. The board operates by simple majority.
