The Deal-Maker in Chief is about to make one of the worst deals ever.

Mark Pearce

Reports suggest the White House is seriously considering re-nominating Mark Pearce to the NLRB. Yes, the same Mark Pearce who ran the NLRB while it overturned over 4,500 years of legal precedent and tilted labor law heavily in favor of Big Labor. Things like ambush elections, fractured bargaining units, an “anything goes” attitude toward workplace civility, taking a sledgehammer to the franchise business model, and much more.

This unbelievable development is supposedly part of a deal with Chuck Schumer to release a package of nominees being held up by Democrats. The nominees are rumored to be a handful of appointments to the Department of Labor plus Mitch McConnel’s brother-in-law, who is slated to run Pension Benefit Guaranty Corporation.

This deal is terrible for a bunch of reasons, but I’ll outline my top three:

  1.    It rewards bad behavior. Senate Democrats are holding up nominees at an unprecedented scale. Doing a deal like this now – especially if the nominees that get freed up are just a few folks at DOL and PBGC – just encourages Democrats to continue holding up nominees. If you ever want to get nominees through you’re going to need a heck of a lot more leverage than a holdover Obama appointment. See suggestion 3 below if you really want to get some leverage for a deal.
  2.    Re-nominating Pearce guarantees that much of the Obama-Board law stays put. NLRB personnel around the country are in outright resistance mode, starting with Pearce. The Hy-Brand recusal debacle is the most visible result of this resistance, but there is much more where that came from. Meanwhile, it took a year to get a full-strength Board in place. Even though we’ve had a Republican majority at the NLRB for several months there has been little to show for it. That’s not because Chairman Ring and members Emmanuel and Kaplan aren’t working their tails off (I guarantee they are). It’s because Pearce and others are geniuses at how to run the agency version of the four-corners offense. Any Democrat on the Board will continue to slow things down, but re-nominating Pearce puts Dean Smith on the opposing bench. Why on earth would the White House consider doing that?
  3.    You can get a MUCH BETTER deal by letting Pearce’s term expire. If you are REALLY interested in getting nominees through the process you let Pearce’s seat sit unfilled. Here’s why. While that seat sits empty Republicans will be at leasttwice as effective at getting decisions made and rulemaking implemented. You’ll only have to wait on one dissent or coordinate with one person’s schedule. You will never have a Democrat majority on any panel. That’s important because a frustrating number of cases in the last few months have been 2-1 decisions where the Republican member writes a dissent – even though Republicans are in the majority! The last year and a half (with the exception of the very end of Phil Miscimarra’s term on the Board) have been mostly a replay of the last decade of board decisions. A 3-1 Republican-majority Board will be much more productive. And every single time they return labor law precedent back to where it was during the decades before the Obama Board showed up here’s what will happen. Labor unions will be lined up outside Chuck Schumer’s office demanding that he offer a better deal to get another Democrat on the Board. Eventually Schumer may come up with an offer the Administration can’t refuse. But this current deal isn’t anything close.

I completely understand why the Administration is considering this deal. The NLRB already has a Republican majority while other agencies are choked because nominees are stuck. Eventually there will probably be another Democrat in Pearce’s seat who will also try to stall things (although Republican seats remained empty for years during the Obama administration, which is one of the reasons the NLRB was so effective for Big Labor during his term). Why not strike a deal now and at least get a few more seats filled? After all, a re-nomination doesn’t even guarantee that Pearce is confirmed. The big reason is that this is a terrible deal.

It’s bad politically. Every single time one of the great dissents written over the last decade gets adopted by the Ring Board, the Administration can take a victory lap. As Republicans head into one of the craziest November elections in history, things like protecting the franchise business model, creating jobs, and reducing regulation are great things to talk about.

It’s bad optically. This deal looks bad because a big part of it is getting Mitch McConnel’s brother-in-law seated. I’m sure that’s not lost on Schumer. If this was part of a large package of nominees (or even a waiver of the debate rule on all remaining nominees) it would look a lot better, and I think a few months of Board decisions gets you that deal.

Finally, it sets a bad precedent. Doing this deal just encourages more stalling on Administration nominees. Everything stays stuck in neutral. If you want to discourage this behavior you have to make it painful. And one thing you know for sure is that anything that upsets Big Labor is going to cause pain for Democrats. Don’t get me wrong, other agencies are important. But the NLRB is the one that labor unions – the biggest donors to the Senators who matter – pay attention to.

The Trump Administration prides itself on doing great deals. That’s why it should not re-nominate Pearce while it holds out for the best deal possible.