Opinion

The National Labor Relations Board’s (NLRB) Saboteur

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Posted: Aug 29, 2018 11:45 AM
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The National Labor Relations Board’s (NLRB) Saboteur

Right now, the Senate can save the Trump administration from a big mistake. 

The Trump administration caved to pressure from Senate Democrats to nominate a liberal labor activist to the National Labor Relations Board (NLRB) who will sabotage the great work being done by the Trump-controlled NLRB. Mark Pearce, whose term expired this week, is an Obama appointee and former chairman.  He was re-nominated by President Donald J. Trump to fill a Democratic seat on the NLRB because of pressure by liberals in the Senate.  Senate Democrats are promising to let a few Republican nominees that they have taken hostage pass if the Senate confirms this NLRB saboteur. 

Confirming Pearce would likely result in some bad decisions by the NLRB. 

According to the NLRB website, the board “is an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.”  The board has five members (four right now with the expiration of Pearce’s term) and “primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings.”  Right now, there is a 3-1 majority of Republicans but there would be a serious problem for the Trump agenda if that balance was 3 Republicans to 2 Democrats, because of Democrats' push to sideline two of the three Republican members through forced recusals.

The left has pushed the NLRB inspector general to demand recusal of some Republican members that would, with Pearce as a member of the board, provide the Democrats a working majority on one of the big cases before the NLRB today. According to Politico, “earlier this month, union groups filed a motion that called for Emanuel and NLRB Chairman John Ring to recuse themselves from a long-running McDonald’s joint-employer case.” This after they had successfully pushed the inspector general of the NLRB to rule “last winter that Republican member William Emanuel should have recused himself from a pro-business December ruling narrowing the circumstances under which a business could be classified a joint employer, jointly liable for labor violations committed by its contractors or franchisees.”   If successful in getting Pearce back on the board, and if they can force recusal on two Republican members, that would provide Democrats a working majority on this anti-business issue – and potentially other cases.

Pearce is widely viewed by the business community as somebody who is adept at manipulating the rules of the NLRB to get his way. Matt Patterson wrote at Forbes “in 2011 Pearce was made Chairman, from which position he made war on employers and proved the most reliable union hack that the Board had ever seen. As the Wall Street Journal noted: '[F]or the last decade Democrats have used procedural tricks and bullying to tilt the board sharply toward union interests. Mr. Pearce has been the ringmaster.'"

 Andy Puzder wrote at Fox News “under Pearce, the NLRB, was grossly anti-employee (particularly private sector employees who did not want to join a union) and anti-business, consistently favoring big labor at the expense of everyday Americans. Pearce was the mastermind for much of the progressive establishment’s anti-business labor agenda – an agenda he pushed without regard for existing law.”   Giving Pearce another six-year term to attack the business community will hurt economic growth at a time when the economy is booming.

There is precedent for just leaving that seat empty.  Look no further than the Obama administration, which left many Republican seats empty during his presidency. Leaving that seat empty seems like the best option to continue Republican control of the NLRB.  With the big push on the left to pressure Republican members of the NLRB to recuse themselves from the franchise case, and that strategy becoming a way for Democrats to wrestle control of the NLRB, it makes perfect sense to just not confirm anybody to fill the seat.

At a minimum, the Senate should hold off on taking any action until after the elections and to preserve a chit if the Democrats take over the Senate.  I would be folly to give Democrats a nomination they desperately want when the Trump administration, and Senate Republicans, might want to take this liberal nominee hostage themselves in negotiating a deal next year if the bottom falls out for Senate Republicans this fall and they lose control of the chamber.   

Senate Majority Leader Mitch McConnell (R-KY) would be wise to not confirm this controversial nominee because of the long-term damage Mark Pearce could do to a healthy business climate.  The nomination of a liberal pro-union activist was a mistake, but hopefully the Senate can save the economy from this saboteur by leaving that seat empty on the NLRB by not confirming Mark Pearce for another term.