Pearce Re-Nominated to NLRB

Aug 29, 2018 - 4:45pm

Executive Director, Labor Policy

The White House announced on August 28 that President Trump nominated Mark Gaston Pearce to be a Member of the National Labor Relations Board (NLRB) for another term of five years expiring August 27, 2023.  Pearce had been one of two Democrats on the five-person board, but his previous term expired on August 27. 

President Barack Obama first appointed Pearce to the NLRB in 2010 and again in 2013 for a full five year term.  Pearce also served as Chairman from August 2011 to January 2017, a period during which he led the Board’s effort to rewrite labor law in favor of union interests.  By one estimate, during his entire tenure on the Board, Pearce and his acolytes overturned 4,559 years’ worth of precedent to advance their agenda.

One of the most notable instances of that phenomenon was the NLRB’s dubious 2015 decision in Browning-Ferris, in which the Board redefined who is a “joint employer” under the National Labor Relations Act.  For over 30 years prior to that ruling, the NLRB considered two separate business entities to be joint employers if both entities exercised direct and immediate control over the terms and conditions of employment of the same workers. That meant that both entities actually shared the ability to hire, fire, discipline, supervise and direct the workers in question. 

Browning Ferris discarded that well-established standard in favor of one in which almost any economic or contractual relationship could trigger a finding of joint employer status. The decision, coincidentally perhaps, dovetailed with union efforts to organized franchise restaurants in the fast food industry, and it injected massive uncertainty about longstanding and commonplace business practices such as franchising and subcontracting.

The Board also overturned decades of precedent in Piedmont Gardens, which required witness statements in workplace investigations to be disclosed to a union.  That decision overturned a unanimous five-member decision that had been established in the NLRB’s 1978 Anheuser-Busch decision, which held that unions were not entitled to copies of witness statements.

Under Pearce’s leadership, the NLRB continued to exhibit its indifference toward decades of well-settled law in another case involving Piedmont Gardens.  In a separate decision a year later, the Board ruled against the company for hiring permanent replacements of striking employees, allegedly as a means to discourage future strikes.  In doing so, it deemed such a motivation to be unlawful retaliation for union activity, thus disregarding seven decades of Supreme Court and Board precedent allowing that practice as an “economic weapon” during an economic strike. 

On top of all of that, Pearce declared he wanted to make the NLRB a “household word” and led the Board on an absurd crusade to declare that reasonable—and common— workplace rules violate federal labor law.  That campaign sought to outlaw generally uncontroversial rules found in employee handbooks and in employers’ social media policies—rules that employers maintain for a variety of legitimate business reasons.  This even included policies requiring employees to be courteous in the workplace.  Conveniently, these handbook violations could be used to justify overturning an election result if a union lost.

This is just a small sampling of the unbalanced decisions issued by the Board during Pearce’s tenure.  Suffice it to say, these disruptive, harmful, and lopsided set of policy changes have left much for the current Board majority to rectify, a process made more difficult by his serving the role union obstructionist. 

With the Senate’s calendar being what it is, it is questionable whether Pearce’s nomination will be considered before next year.  In the meantime Senators should consider Pearce’s track record carefully before deciding whether he is deserving of yet another term.

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Executive Director, Labor Policy