Trump Taps Controversial Obama Holdover for 5-Year Term

Labor watchdogs upset with renomination of Mark Gaston Pearce

Mark Gaston Pearce / Twitter
August 30, 2018

The Trump administration is seeking to reappoint a controversial Obama holdover to the federal government's top labor arbiter, sparking criticism from a former Trump nominee.

The White House announced it is seeking to reappoint President Obama's former National Labor Relations Board chairman Mark Gaston Pearce to another five-year term on the board, which oversees workplace disputes and union elections. The announcement came in a White House release of various nominees to federal posts, but was notable given objections from several high profile conservative organizations, labor watchdogs, and even a previous Trump appointee.

Andy Puzder, Trump's first choice as secretary of labor, told the Washington Free Beacon that the White House made a mistake by attempting to keep Pearce on the board. The five-member board is designed to be partisan with three nominees from the president's party and two from the minority party. Puzder acknowledged that "Democrats get to pick their nominee." He was still disappointed given Pearce's track record during the Obama era, in which the NLRB overturned numerous long-standing precedents on issues ranging from franchising to union election procedure, employee handbooks, collective bargaining, and employee classification for college students. Pearce was a board member that valued partisan agendas over interpreting legislation, according to Puzder.

"I was disappointed that this individual, who was responsible for so much economic uncertainty and damage, was being considered for another term," he said. "Once he's on the board it means Big Labor will have a zealous advocate who isn't reluctant to overreach in pursuit of his political objectives."

The White House did not return several emails seeking comment on the nomination.

Puzder, who dropped his pursuit to lead the Department of Labor after an exhaustive campaign from unions and Democrats, said the White House did not consult him about filling Pearce's seat when his term expired on Monday. He said he is hopeful Trump's three management-side appointees can act to reverse many of the policies set by Pearce when he led the board under President Obama.

"The appointment [of Pearce] itself doesn't change the balance," Puzder said. That will change when the Senate confirms the appointment, however. "Management and employees—particularly those who prefer not to join a union—will have an opponent sitting on the board."

Pearce's nomination followed a series of reports that Senate minority leader Chuck Schumer (D., N.Y.) was lobbying the White House to reappoint Pearce. Just hours before the White House announcement, Schumer and Senate majority leader Mitch McConnell (R., Ky.) reached an agreement to confirm seven Trump judicial nominees to federal courts.

Sen. Schumer did not return request for comment.

Some business groups voiced their objections to the Obama holdover's continued tenure on the board. The NLRB targeted the franchising industry during Pearce's initial term and overturned decades-old precedent to hold parent companies liable for labor violations committed by franchisees or subcontractors—a major victory for union organizers. Matthew Haller, spokesman for the International Franchise Association, said he hopes Senate Republicans will block Pearce's nomination to force Democrats to put forth a less radical nominee and prevent him from gaining control of the board in the future.

"It's no secret that Pearce was bad for American businesses and their employees," Haller said. "Another five-year term—and another possible chairmanship—could seriously hamper the economic growth we've had for the past two years."

Labor watchdogs voiced similar concerns. Trey Kovacs, a labor expert at the pro-free market Competitive Enterprise Institute, said the Obama board was among the "most partisan" in the agency's history, adding that Pearce in particular was "far from the impartial arbitrator that Congress intended NLRB members to be." Reestablishing Pearce on the board could end up hindering the administration's goal to reduce the burdens of regulation in the future.

"Pearce spearheaded possibly the most partisan NLRB to date and tilted labor relations far in favor of labor unions over workers and job creators," Kovacs said in a statement. "Renominating Pearce directly contradicts the stated goals of this administration to ease burdensome regulations and create jobs."

A spokesman for the Senate Committee on Health, Education, Labor, & Pensions said Chairman Lamar Alexander (R., Tenn.) was aware of the nomination ahead of the announcement. The committee is now in the process of gathering ethics disclosures and other documents but has not yet set a date on Pearce's confirmation hearing.