Illegitimate efforts to weaponize ethics pledges and make it impossible for President Trump’s appointees to operate at federal agencies continue apace at the National Labor Relations Board.
Initially, the “resistence” to any actions by this President’s NLRB appointees caused a stir in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017) (3-2 decision), vacated, 366 NLRB No. 26 (Feb. 26, 2018). The Board’s Inspector General David Berry opined, erroneously in the view of many scholars, that NLRB Member William Emanuel should not have participated in the case. See here and here. The forced and erroneous recusal of Member Emanuel left the law in limbo and the Obama Board’s joint employer regime in place.
Today, the effort to defenestrate President Trump’s NLRB appointees remains in high gear, as union lawyers just filed a Motion to Recuse NLRB Chairman John Ring and Member William Emanuel in the controversial McDonald’s joint-employer case, based largely upon the Presidential Ethics Pledge both signed. The Motion appears meritless for the reasons cited above regarding Hy-Brand. But with the help of several Democratic senators, these unions are attempting an administrative coup d’etat, in which the two Obama-appointed holdovers can take control of the NLRB if enough Trump appointees are recused. The unions’ success in this endeavor will prove catastrophic for independent-minded workers who wish to opt out of unions, especially if the often reversed Member Mark Pearce manages to secure re-nomination. Read more here.
As union lawyer and Clinton NLRB appointee Craig Becker stated in refusing to recuse himself, “Under our Constitution, the President has authority to appoint executive branch officials to positions, such as those on the NLRB, whose views coincide with those of the President on matters of policy left open by controlling statutes.” Pomona Valley Hospital Medical Center, 355 NLRB 234, 241 (2010). Member Pearce’s term ends next week, and this President, like Bill Clinton, is entitled to nominees “whose views coincide with” his. In my opinion, Member Pearce’s re-nomination is something the President and Senate should oppose at all costs.