So long, Farewell, Auf Wiedersehen II

Sean P. Redmond
Vice President, Labor Policy, U.S. Chamber of Commerce

Published

February 05, 2019

The former chairman of the National Labor Relations Board (NLRB or Board), Mark Gaston Pearce, today announced that he was withdrawing his name as a nominee to serve another term on the Board. His decision leaves in place a 3-1 Republican majority and ends several months of back-and-forth about his reentering government service.

Pearce first was nominated to the NLRB by President Barack Obama, who placed him on the Board with a recess appointment in April 2010. He was ultimately confirmed in June of that year, and he served as chairman from 2011-2017. Following the election of President Donald Trump, Pearce remained as a Board member until his appointment expired in August 2018.

During that time, Pearce and his colleagues in the Democratic majority worked assiduously to overturn longstanding precedents in numerous areas of labor law, all in the hope of tilting the playing field in favor of organized labor. Indeed, according to one estimate, under Pearce’s tenure the NLRB discarded approximately 4,500 collective years of precedent to facilitate union organizing.

Just a small sample of the NLRB’s overreach during Pearce’s tenure included:

Promoting the formation of “micro-unions” made possible by the NLRB’s 2011 decision in Specialty Healthcare in which the Board threw out decades of precedent regarding what is an “appropriate” bargaining unit.
Pursuing a new, radical definition of “joint employer,” which the NLRB did in its controversial 2015 Browning Ferris decision.
Undermining the use of arbitration agreements under the dubious theory that arbitration agreements violate rights to engage in concerted activity under Section 7 of the National Labor Relations Act, an issue that went all the way up to the Supreme Court where the Board’s position was struck down.
Attempting to outlaw employers’ commonsense guidelines on employees’ social media communications.
Waging a war on other commonsense provisions found in employee handbooks.
Requiring employers to disclose to unions witness statements in workplace investigations through its 2017 Piedmont Gardens decision.

After Pearce’s term expired last August, the White House announced that it planned to re-nominate him for another term, leading to much conjecture about whether the Senate would try to package his nomination with those of several other appointees. Ultimately that did not happen. With his fate uncertain in the new Congress, Pearce apparently concluded that his chances for another term were slim, saying, “I feel it’s best that I remove myself from the center of a political tug of war that has spanned five months.” Employers will be alert to when, or if, another nominee comes forward.