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Abruzzo Confirmed as NLRB Top Lawyer by Harris Tiebreak (1)

July 21, 2021, 4:22 PM; Updated: July 21, 2021, 5:01 PM

The divided U.S. Senate confirmed union lawyer Jennifer Abruzzo to serve as general counsel of the National Labor Relations Board on a party-line vote that reflected the deep political and legal discord over the agency’s future course.

Senate Democrats needed a tie-breaking vote from Vice President Kamala Harris to confirm Abruzzo 51-50 on Wednesday, capping a months-long battle that began when President Joe Biden fired the independent agency’s Trump-era top lawyer, Peter Robb.

Robb’s Inauguration Day sacking broke with precedent and prompted sharp criticism from Republicans as well as business advocates. Employers have since mounted broad legal challenges in NLRB cases, arguing that Biden lacked authority to fire the Senate-confirmed general counsel of an independent agency without cause. Robb’s term was due to expire in November.

Abruzzo’s confirmation closes a chapter of the Robb saga, giving the Biden administration room to unleash an aggressive enforcement doctrine at the NLRB and re-staff regional offices, which Robb’s critics say were gutted under his leadership. But it’s unclear if Abruzzo’s confirmation will be enough to short-circuit legal challenges from employers, several labor attorneys said in interviews.

Biden’s immediate replacement for Robb, Acting General Counsel Peter Sung Ohr, has faced several legal objections to his authority based on the argument that Robb was fired unlawfully. The NLRB punted on the issue, saying in April that the matter should be left to federal courts, which have yet to issue a definitive ruling on the matter.

Democrats and their union allies believed Robb was favoring employers and weakening the agency’s regional framework to consolidate case-handling power in Washington. Supporters of Biden’s action believe the president has authority to fire the NLRB general counsel at any point, a view they say was re-enforced by the Senate’s confirmation of Abruzzo as Robb’s full-time replacement.

Confirmation Effect

“She clearly was approved through the proper measures,” said Jeffrey Hirsch, a labor law professor at the University of North Carolina and a former NLRB attorney. Hirsch said the Senate’s approval could make a court-ordered remedy—such as one nullifying Abruzzo’s future actions as general counsel—more difficult for challengers to obtain.

To Republicans and business advocates, Abruzzo’s confirmation doesn’t erase the fact that Robb was fired 10 months before the end of his Senate-confirmed term in November, and for political reasons; that reality makes any successor’s actions until then illegal, they argue.

“Being confirmed is not going to change that,” said Jack Toner, a former NLRB lawyer who represents businesses at Seyfarth Shaw.

Abruzzo, most recently an attorney for the Communications Workers of America, served on Biden’s transition team for labor agencies. Republicans have criticized her for allegedly playing a role in preparations for Biden’s decision to fire Robb.

Last week, a federal judge in New Jersey said federal labor law clearly gives presidents authority to fire NLRB general counsels without cause, rejecting an employer’s request to stop the NLRB from issuing an injunction over allegations that the company purged union supporters. But in the decision, U.S. District Judge Noel Hillman avoided ruling specifically on Biden’s termination of Robb, and other elements of the case make it an unlikely vehicle to bring the broader dispute over Robb’s termination before the U.S. Supreme Court.

After the Challenges

The challenges to Ohr’s tenure could be short-lived once Abruzzo is sworn in, given that she could embrace the acting general counsel’s decisions in an official memo, Toner said.

On the personnel front, Abruzzo could accelerate hiring to combat attrition in the regional offices, especially if Congress delivers spending increases for the NLRB that the Biden administration and Democratic appropriators have proposed.

At her confirmation hearing in April, Abruzzo, who has more than two decades of experience at the NLRB, said she was “extremely troubled” at the decline in personnel, “particularly in the field offices, where over 90 percent of the agency’s work is performed.”

Ohr has already taken steps to fill vacancies, last month promoting nine current employees to senior leadership roles at regional offices that investigate complaints and oversee union elections. The move was intended to reverse a brain drain at regional offices, which lost a third of staff from 2010 to 2019, according to a U.S. Government Accountability Office Study published earlier this year.

Two Democratic nominees for seats on the NLRB’s five-member board, Gwynne Wilcox and David Prouty, are pending before the Senate. If confirmed, the duo would give Democrats control of the board once the term of Republican member William Emanuel expires next month.

—With assistance from Robert Iafolla

(Updated with additional reporting throughout.)

To contact the reporter on this story: Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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