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With a new NLRB, wholesale reversals?

The Buffalo (N.Y.) Law Journal profiles Mark Pearce, the Buffalo labor lawyer named via recess appointment by President Obama to the National Labor Relations Board, "Recess appointment takes Pearce back 'home' to NLRB." Pearce, 56, a partner at Creighton Pearce Johnsen & Giroux, actually began his legal career in the Buffalo offices of the NLRB. (Now that we look at Pearce's law firm bio, we find he's also an accomplished painter and portraitist.)

Pearce takes office on Wednesday as one of two Democratic appointees. Also expected to join the the board this week is the more controversial nominee, Craig Becker, the associate counsel for the SEIU and AFL-CIO. Their addition will make the board 3-1 Democratic to Republican; the five-member board is traditionally 3-2, with the majority held by the political party of the President.

Martin Payson, a partner at Jackson Lewis, raises the prospects of a completely one-side board if President Obama does not appoint or gain confirmation of a Republican board member -- he has nominated Senate staffer Brian Hayes -- and current Republican member Peter Schaumber leaves with the expiration of his term on August 37:

There will be no imperative for the President to fill the other two vacancies, which will mean there will be no institutional balance in the Board's decisions. Consequently, labor law reform will be accomplished through the reversal of numerous decisions, changes in election procedures, as well as aggressive rulemaking to enhance union chances for election success, and punitive new remedies for unfair labor practices designed to diminish management's lawful exercise of its statutory rights.

Schaumber gave an excellent speech March 3 at the ABA's Winter Meeting in Puerto Rico on labor policy, labor law and the functioning of the NLRB. In it, he responded to an earlier speech at Washington University in St. Louis given by Chairman Wilma Liebman. From Schaumber's remarks:

Chairman Liebman's speech is an important one, thoughtful, and I encourage you to read it. However, it is also a speech that was troubling for me on a number of levels. One can argue that the positions staked out therein reflect a nostalgia for a foregone era: a period in the 1930's and 40's when the Wagner Act reigned and American unions had only rights, not obligations; when employees lacked the protections afforded by Taft Hartley, and employers were severely restricted in their ability to convey opposition to the unionization of their enterprises. I would argue that the speech also rests for some of its assertions on incomplete statements of historic events, and discredited, or at the least hotly contested, research. One of the troubling aspects of the speech, for me, is its hint at the possibility of an upcoming wholesale reversal of Bush Board precedent.

A transcript of Liebman's speech is available here.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.