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Senate Talking Deal on Trump Nominees, NLRB Member Pearce

Aug. 22, 2018, 8:28 PM

The White House and Senate leaders are discussing a deal to reduce the Trump nominee backlog and give Mark Gaston Pearce (D) another term on the National Labor Relations Board, sources told Bloomberg Law.

Pearce, who has drawn sharp criticism from Republicans and the business community in eight-plus years on the NLRB, is slated to leave the board when his latest term expires Aug. 27. Lawmakers are considering a deal that would give Pearce a third term in exchange for Democrats agreeing to waive waiting periods and confirm certain pending nominations. That includes some nominees for Labor Department posts, the sources said.

“The business community is aware of discussions between the White House, and Sens. McConnell and Schumer’s offices for the potential renomination of NLRB member Mark Pearce,” HR Policy Association lawyer Roger King told Bloomberg Law. “The business community has expressed concern on a policy basis.”

A White House spokesman didn’t immediately return Bloomberg Law’s request for comment Aug. 22. An official for Senate Minority Leader Chuck Schumer (D-N.Y.) didn’t respond to an email seeking comment.

Senate confirmation is the last step in the nomination process. The White House has been pushing to seat personnel who can help reverse various Obama-era moves and help put President Donald Trump’s stamp on policy.

A deal on Pearce’s renomination could come as early as this week. The Senate traditionally confirms some nominees shortly before recess. Lawmakers are set to leave the Capitol for the Labor Day recess later this week.

More than 150 of Trump’s nominees are still awaiting Senate confirmation for ambassadorships, as well as posts at agencies ranging from the Labor Department to the Environmental Protection Agency.

Business Lobby Opposes Renomination

Pearce’s exit would create a vacancy on the five-member board, which is already controlled by Republicans. Trump could choose to leave the seat open, as his predecessor did for two years after former Member Harry Johnson’s (R) term ended in 2015.

Pearce served as the board’s chairman for more than five years in the Obama administration. He was a key advocate for Obama workplace policies, such as expanding joint-employer liability for affiliated businesses in franchise, staffing, and other contractual relationships.

The now Republican-led board has already started to reverse a number of decisions from the Obama years. Chairman John Ring (R) recently announced that the NLRB is working on a proposed regulation to update the joint employer liability policy.

Some Senate Republicans are aware of the business community’s reservations about keeping Pearce on. Those include Sen. Johnny Isakson (Ga.), chairman of the Health, Education, Labor and Pensions subcommittee on Employment and Workplace Safety.

“Senator Isakson has a few questions that he needs answered before he can make that decision,” spokeswoman Amanda Maddox told Bloomberg Law Aug. 16 about potentially voting on a Pearce renomination. “Right now, there are strong reservations about his renomination based on past decisions he’s made while serving on the board.”

—With assistance from Jaclyn Diaz and Hassan A. Kanu.

To contact the reporter on this story: Tyrone Richardson in Washington at trichardson@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com