The current term of Mark Gaston Pearce as a Member of the National Labor Relations Board expires on August 27, 2018. Traditionally, the Board has consisted of three Members from the President’s party and two from the other major party. It has been publicly reported that Member Pearce, a Democrat who represented labor organizations before coming to the Board, is lobbying for reappointment. However, Member Pearce has a record that shows that he is a particularly virulent opponent of the rights of private-sector workers who choose not to support unions and object to being forced to subsidize them, more so than other Democrat appointees to the Board. Specific cases that demonstrate this follow.
Service Employees Local 121RN (Pomona Valley Hosp. Med. Ctr.), 355 NLRB 234 (2010) (2-1 decision): During successor-contract negotiations the union circulated a flyer that asserted that employees’ obligations to pay dues and fees as a condition of employment survived expiration of the contract and clearly implied that the union would seek to enforce those obligations. A nonmember employee represented by a National Right to Work Legal Defense Foundation Staff Attorney filed unfair labor practice charges against the union. Chairman Wilma Liebman and Member Craig Becker, both Democrats, concluded that the union violated the National Labor Relations Act “by conveying such a threat in support of an asserted employee obligation to pay dues and fees covering a time period when no union-security provision was in effect and as to which no union-security clause could lawfully be enforced retroactively.” Id. at 237. Member Pearce dissented, arguing that the flyer “was lawful because it contained a reasonably accurate statement of certain of the rights and obligations of voluntary union members.” Id.
Machinists Local Lodge 2777 (L-3 Commc’ns Vertex Aerospace LLC), 355 NLRB 1062 (2010) (4-1 decision): The International Association of Machinists and its subordinate affiliates had a policy that required nonmembers to notify the unions annually of their objection under Communications Workers v. Beck, 487 U.S. 735 (1988), to supporting union political and other activity unrelated to collective bargaining and contract administration. A nonmember represented by a Foundation Staff Attorney filed unfair labor practice charges challenging that policy. Chairman Liebman, Member Becker, and two Republican Members found that the annual objection requirement was unlawful as “arbitrary under the duty of fair representation,” because the unions had “failed to present a legitimate justification . . . sufficient to justify even the modest burden the requirement imposes on an individual seeking to make an objection.” Id. at 1062 (Liebman & Becker), 1070 (Member Schaumber, concurring in part), 1074 (Member Hayes, concurring in part). Member Pearce dissented, arguing that “the annual renewal requirement rationally serves the Unions’ legitimate interests.” Id. at 1074.
Local 58, Int’l Bhd. of Elec. Workers (Paramount Indus.), 365 NLRB No. 30 (Feb. 10, 2017) (2-1 decision): After Michigan’s new Right to Work law became effective as to the Paramount Industries bargaining unit represented by IBEW Local 58, the local announced a new policy that any member who wished to resign from membership or revoke a dues deduction authorization had to do so in person at the union hall, a two-hour drive from Paramount’s facility, and there provide a picture identification and written request to resign and/or revoke. A Foundation Staff Attorney filed unfair labor charges for an employee who resigned by letter sent to Paramount. Acting Chairman Miscimarra, a Republican, and Member Lauren McFerran, a Democrat, held that the union’s policy was “facially unlawful because it restricts the rights of union members to resign from the union and to revoke prior authorizations for the deduction of union dues from their pay.” Id., slip op. at 1. Member Pearce dissented, claiming that the union’s policy “does not restrict resignation and . . . cannot reasonably be construed as such.” Id., slip op. at 6.
Lehigh Valley Hospital-Schuykill Medical Center, Case 04-UC-200537 (Jan. 25, 2018) (unpublished 2-1 decision): Chairman Marvin E. Kaplan, a Republican, and Member McFerran granted the employer’s request for review of a Regional Director’s decision to accrete previously unrepresented employees at one facility into a bargaining unit that previously consisted only of employees at another facility. The employees at the previously unrepresented facility had earlier resisted unionization, and Foundation attorneys filed a brief for those employees urging that review be granted. Member Pearce dissented from the grant of review, arguing that the employees whom the Regional Director would force into the existing unit without an election “share an overwhelming community of interest with the existing bargaining unit employees and have no separate group identity.” Id., slip op. at 2.
Bronx Lobster Place, LLC, Case 02-RC-191753 (Feb. 2, 2018) (unpublished 2-1 decision): Members McFerran and William J. Emanuel, a Republican, vacated the results of a representation election and remanded for a second election where the union had won by only two votes but at least four eligible voters did not vote, because the Board agent conducting the election opened the polls several minutes late, “resulting in the potential disenfranchisement of a dispositive number of eligible voters.” They applied controlling Board precedent “holding that ‘[w]hen election polls are not opened at their scheduled times, the proper standard for determining whether a new election should be held is whether the number of employees possibly disenfranchised thereby is sufficient to affect the election outcome, not whether those voters, or any voters at all, were actually disenfranchised.’” Id., slip op. at 2 (quoting Pea Ridge Iron Ore Co., 335 NLRB 161, 161 (2001)). Member Pearce dissented, relying on a case that the majority distinguished because in that case “there was clear objective evidence explaining why the [potentially determinative] employees did not vote,” unlike this case in which there was only “an absence of evidence to explain why potentially determinative voters did not cast their ballot.” Id., slip op. at 2.