I’ve written often about President Trump’s strange decision (or the decision of his advisers) to renominate Chai Feldblum as an EEOC Commissioner. Feldblum was the architect of President Obama’s aggressive LGBT agenda. Thus, her renomination seemed like a betrayal of Trump’s social conservative supporters.
Some (perhaps many) of them construed it that way. As a result, Feldblum has not been confirmed. Neither have the two Republican nominees on the same slate, including the excellent Daniel Gade.
Now, President Trump has renominated Mark Gaston Pearce to serve a third term on the National Labor Relations Board (NLRB). I think of him as the Chai Feldblum of the NLRB.
Unlike Feldblum, Pearce isn’t the bane of social conservatives. The NLRB generally doesn’t become involved in issues that matter deeply to them.
However, Pearce faces stiff opposition from the business community, and for good reason. He is an architect of the President Obama’s aggressive pro-labor agenda.
Braden Campbell of Law 360 provides a good summary of Pearce’s record:
Pearce, who joined the board in April 2010 and was its chair from August 2011 until Trump took office, wielded his power very effectively until his term expired Monday. He owes his current status as the management-side labor community’s public enemy No. 1 to the series of policy changes he oversaw broadening the scope of labor complaints workers could bring against their employers and speeding up the union election process.
The board’s 2015 Browning-Ferris Industries ruling is among the marquee decisions of Pearce’s tenure. The 3-2 party-line ruling loosened the board’s standing for finding two affiliated businesses to be joint employers under the National Labor Relations Act, which the board administers. The ruling made it easier for staffing company workers to bring unfair labor practice charges against the company to which they’re contracted, for example.
Pearce’s critics have also attacked the board’s 2014 regulation overhauling the process by which workers vote to decide whether to form a union. The rule, derisively labeled the “ambush election” rule by the business side because it shortened the time period for holding union elections, also directs employers to provide unions more detailed information about their workers and blocks certain disputes, such as those over who belongs in a bargaining unit, from holding up votes.
Other rulings handed down during Pearce’s tenure have struck certain types of workplace rule as overbroad, held invalid agreements making workers waive their rights to file class actions and given workers more sway over who belongs in their unions, though these rulings have been scaled back by the Trump administration and the courts.
These issues are pretty technical, and I take no position on the merits of any of them. But they matter a great deal to the business community, as do other issues Pearce will help decide if he is confirmed for another term.
And Pearce’s vote will often matter, even though Republicans will hold three of the five NLRB seats. As Campbell explains, the NLRB typically decides routine cases in three-member panels and precedent-setting cases as a full body. Thus, if Pearce is confirmed, he and fellow Democrat Lauren McFerran will be able to outvote Republican appointees if they’re both on the same panel. They will also be able to block a precedential ruling if a Republican has to sit out the case due to a conflict of interest, as Democratic lawmakers and labor allies have lately sought.
It remains to be seen how effective the business community’s opposition to Pearce will be. If I were a liberal nominee, I’d rather incur the wrath, such as it is, of the business community than the wrath of social conservatives. It also remains to be seen whether Republicans will continue to make up a majority of the Senate in 2019.
It puzzles me, though, why President Trump persists in renominating some of the Obama administration’s most effective and most left-wing holdovers. There seem to be forces in the administration that are okay, and maybe happy, with this.
Perhaps they are the same forces responsible for making Alex Acosta Secretary of Labor.
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