Conservative and free market groups are urging President Trump to leave empty a seat on the National Labor Relations Board, the main federal labor law enforcement agency, in order to tighten the GOP’s grip on labor policy.
The term of Mark Gaston Pearce, the Democratic appointee who currently holds the seat, term expires on Aug. 27, and Democrats have pushed Trump to re-up him for another five years. Simply leaving the seat open, however, would ensure Republican control of the board through 2020.
The five-member board currently has a controlling 3-2 GOP majority, all appointed by President Trump, but controversy surrounding one of them, former business lawyer William Emanuel, means that he may be pressured to recuse himself from a wide number of cases. That would leave the board split 2-2 — but without Pearce, the remaining Republicans would retain majority control.
“President Trump cannot allow Democrats to grind the NLRB to a halt until the next presidential election and preserve Obama-era NLRB precedent,” said Trey Kovacs, labor policy analyst for the Competitive Enterprise Institute, in a blog post Wednesday. “President Trump must take a stand and refuse to renominate Mark Pearce to the NLRB.”
The same argument was advanced by National Right To Work President Mark Mix and the Wall Street Journal’s editorial page.
The board acts independently, but its members are appointed by the president and confirmed by the Senate. By tradition, the president gets to pick the board’s majority, but the remaining two seats are reserved for the minority party.
Critics argue that that Pearce’s tenure from 2011-17 as the board’s chairman, during which time the board tilted strongly pro-union on election rules and regulatory matters, proved he shouldn’t be allowed to return. In an editorial last week, the Journal’s editorial page warned that reappointing him “would reward obstructionism and lawlessness.” Meanwhile, Mix argued in an op-ed for Newsmax that, “[a]gain and again, as a consequence of the actions of Pearce and other Obama NLRB appointees, union bosses have been able to get away for years with illegally extracting forced dues and fees from dissenting workers until the federal judiciary finally put a stop to it.”
Late last year, Trump’s appointees, Emanuel, boardmember Marvin Kaplan, and then-Chairman Philip Miscimarra appeared to be setting the board on more conservative path. In a December case called Hy-Brand, they overturned the board’s most controversial move under Pearce, vastly expanding corporate legal liability under the so-called “joint employer” doctrine. Miscimarra has since been replaced by Trump appointee John Ring as chairman.
Earlier this year, the NLRB abruptly reversed Hy-Brand after the board’s inspector general determined that Emanuel should have recused himself from voting in the case, alleging it involved a conflict of interest with his former law firm. Emanuel has disputed that there was any connection or he was obligated to recuse himself. The board’s decision nevertheless has put Emanuel under heightened scrutiny and Senate Democrats have said they will demand he recuse himself from any case with any connection to his former law firm, Littler Mendelson.
Pearce’s critics note that leaving a seat open would hardly be unprecedented. The board has often lacked a full five members in recent decades due to political gridlock in the Senate from both parties. “President Obama left Republican Board member seats vacant after their terms expired,” Kovacs told the Washington Examiner.
A White House spokesman could not be reached for comment. The NLRB declined to comment.
