Mark Pearce is a sitting member of the National Labor Relations Board (NLRB), appointed by President Obama, whose current term expires at the end of August. The board, if fully filled, is set up to have a narrow 3-2 partisan majority. What that means is that the party in the White House gets 3 appointments, and the party out of power generally gets 2.
Democrats in Congress are clamoring for Pearce’s renomination, but they shouldn’t get their hopes up. While the “out” party rightly gets a say in who is nominated to sit on the NLRB, the president makes the choice, and is under no obligation to renominate a particular candidate. Plus, you know, there are some particularly good reasons to keep Pearce as far away from the NLRB as possible.
The NLRB is structured this way for a reason: The party that holds the executive branch is supposed to be able to nudge things along a bit while ensuring a general consistency in labor laws. Under the Obama administration, though, and especially under Mark Pearce, there was a radically pro-union and pro-labor shift. According to one study, Obama’s NLRB rejected over 4,500 total years of precedent and case law. You read that correctly — 4,500 years of precedent. Thrown out.
One of the many anti-business actions the NLRB took under Pearce was the reinterpretation of the so-called “joint employer” rule. This rule states that workers employed at a privately operated franchise restaurant or business (think local) are employees both of their direct employers and the parent corporation who granted their employers the franchise. This threatens to open up franchise granting businesses such as McDonald’s to reams of litigation and unionization efforts, as well as joint liability in labor disputes.
For context, if only half of McDonald’s workforce were unionized, it would mean $155 million each year in new union dues and fees.
At both the NLRB and in Congress, folks are struggling to clean up the mess created by Pearce. Fortunately, the House of Representatives has passed, and the Senate ought to follow suit, the Save Local Businesses Act, which would formally set the definition of “joint-employer” and give much needed consistency and relief to America’s small business community.
Why Senate Democrats would look at Pearce’s tenure as a good thing is beyond comprehension. Yet Senate Minority Leader Chuck Schumer and company are threatening to gum up the approval process for many of President Trump’s nominees if he chooses not to re-nominate Pearce.
The business community, meanwhile, is nearly in lockstep opposition to Pearce. If Senate Democrats insist that it’s him or the highway, then Trump should play hardball and let the majority temporarily stay at 3-1 in favor of the GOP, which he certainly can do.
Senate Democrats would shriek at this but there is precedent for doing so. In fact, President Obama left a vacancy on the board when Republican Harry Johnson’s term expired in 2015. Obama did not replace him.
The Obama-Pearce NLRB has created endless headaches and countless hours of litigation for small businesses and business owners with its liberal, pro-union, anti-employer bent. Trump’s NLRB could work overtime for the next 2 or 6 years and still not fix all that their predecessors have broken.
And for President Trump, if the Senate Democrats want to slow the nomination process to defend the indefensible, let them. And make them own it by making a campaign issue out of it. Business owners know just how bad Pearce was for business. They’ll cheer to be rid of his liberal agenda, and likely reward the party that jump-started a pro-growth economic climate.
American business leaders and small business owners know Trump has their back and is in their corner, but expunging Pearce and his anti-business policies from NLRB would be one more show of force on their behalf.
Cory Sprunger is an attorney in Indiana.
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