On July 21, 2021, the U.S. Senate confirmed Jennifer Abruzzo to a four-year term as the General Counsel of the National Labor Relations Board (“NLRB” or “Board”). Ms. Abruzzo’s confirmation was by a vote of 51-50, with Vice President Kamala Harris casting the tie-breaking vote. Ms. Abruzzo was sworn in the next day, by NLRB Chair Lauren McFerran. As the NLRB notes, this is “the first time in NLRB history women are serving as both Chairman and General Counsel” of the agency.
Ms. Abruzzo has spent much of her career at the NLRB. She previously served as the Board’s Deputy General Counsel and Acting General Counsel during the Obama administration, and most recently served as Special Counsel for Strategic Initiatives to the Communication Workers of America (“CWA”), the country’s largest communications and media labor union. The CWA, like most other unions, is a strong supporter of the Protecting the Right to Organize Act, commonly referred to as the “PRO Act.”
The General Counsel’s Role
The General Counsel is the chief legal officer of the Board, and her responsibilities include setting the agency’s litigation and enforcement agenda and priorities and having general supervision of the NLRB field offices, and thereby has a significant hand in shaping the interpretation and application of the National Labor Relations Act (“Act”) and nation’s labor policies. Her confirmation, coupled with the expected change of the composition of the Board to a Democrat-appointed majority this summer, solidifies the shift to pro-labor and pro-union policy. President Biden has promised to be “the most pro-union president you’ve ever seen” and is a strong supporter of the PRO Act, and his nominations and appointments reflect that priority.
President Biden’s Firing of Former General Counsel Peter Robb
Ms. Abruzzo succeeds Acting General Counsel Peter Sung Ohr, who was named to that role in January 2021, following President Biden’s firing of Peter Robb, who had been nominated to the role by former President Trump and confirmed by the Senate early in his administration. President Biden, in an unprecedented action and sign of his interest in supporting unions, fired then-NLRB General Counsel Peter Robb on Inauguration Day, even though Mr. Robb’s four-year term had nearly 10 months left. The decision to remove Mr. Robb generated backlash and legal challenges and the close vote in Ms. Abruzzo’s confirmation reflected this.
There have been a number of legal challenges to the firing of Mr. Robb, and questions remain concerning whether Mr. Ohr, as Acting General Counsel, in fact had the legal authority to function as such. In March 2021, the NLRB denied an employer’s request to file a special appeal of a decision rejecting an employer’s motion to dismiss an unfair labor practice complaint issued by a Regional Director as an agent for the Acting General Counsel. The employer asserted that the complaint should be dismissed because Mr. Ohr’s appointment was unlawful, arguing that President Biden didn’t have the authority to fire the general counsel of an independent agency since the Board is supposed to be removed from White House influence.
More recently, Goonan v. Amerinox Processing, Inc., the first court decision involving a challenge to Mr. Ohr’s authority, was issued. In that decision, a district court in New Jersey held that unlike Board members, who may only be removed by the President for cause following notice and hearing, Presidents may lawfully remove general counsels at their discretion. This issue is likely to be considered by additional courts notwithstanding Ms. Abruzzo’s confirmation.
General Counsel Abruzzo’s Background
Ms. Abruzzo is seen as keen on expanding and protecting the rights of workers to join unions and likely to advocate for more union-friendly policies under the Act. She is expected to seek the reversal of budget cuts and staffing reductions implemented under Mr. Robb and policies that critics say have hobbled the ability of NLRB lawyers to pursue unfair labor practice charges and investigate worker complaints against employers.
Ms. Abruzzo has spent the majority of her career at the NLRB, serving for more than two decades in a variety of roles and eventually rising to serve as Deputy General Counsel during the Obama administration, where she served under General Counsel Richard Griffin. She then briefly served as Acting General Counsel following the end of his term.
Much like her immediate predecessor, Mr. Ohr, Ms. Abruzzo is expected to continue rolling back Trump-era policies and to argue for more union-friendly interpretations of the Act. For example, Mr. Ohr affirmed in a recent General Counsel Memorandum his plan to pursue a broadening of employees’ protections under Section 7 of the National Labor Relations Act beyond concerted activities relating to union activity and labor organizing, for instance, by expanding the Board’s traditional view of protected concerted activity to protect employees’ political and social justice advocacy activities under Section 7. A hallmark of Mr. Griffin’s term as General Counsel was an effort to expand the Board’s application of the Act in non-union workplaces and Ms. Abruzzo is expected to renew that focus.
Following Ms. Abruzzo’s confirmation, the NLRB announced Mr. Ohr’s elevation to the position of Deputy General Counsel, the role Ms. Abruzzo held during the Obama administration.
The Changing Composition of the Board
The Board consists of five members, one of whom serves as Chairman. All members are appointed by the President and confirmed by the Senate. Traditionally, a majority of Board members are from the same political affiliations as the President.
The Board is currently led by Chairman Lauren McFerran, a Democrat first nominated by President Obama and elevated in January 2021 to Chairman by President Biden. At present, the three other Board members are Republicans, with one spot vacant. Although there is currently a Republican majority in the Board, this is expected to change, when Board Member William Emanuel’s term expires on August 27, 2021.
President Biden recently nominated two Democrats, Gywnne Wilcox and David Prouty, to serve as Board members, both of whom have spent their legal careers representing unions. Their nominations have been advanced by the Senate Committee on Health, Education, Labor & Pensions and are expected to be brought to the full Senate shortly. Ms. Wilcox is both a partner in the union-side law firm of Levy Ratner and an Associate General Counsel for 1199 SEIU, United Healthcare Workers East. Mr. Prouty presently serves as General Counsel of Service Employees International Union Local 32BJ, the New York-based local that represents more than 175,000 service workers on the East Coast and, if confirmed, will take the seat to be vacated by Mr. Emanuel in August 2021.
What Can Employers Expect?
The combination of a President who openly expresses the goal of being “the most pro-union president you’ve ever seen” and who was elected with strong union support, together with a General Counsel who is coming to her position from the CWA and a career at the NLRB, with a Democratic majority on the Board, including two Board Members who have spent much of their professional lives seeking to advance the interests of unions and workers, is likely to produce an activist Board and General Counsel’s office that will seek to shift the balance in labor law enforcement and administration in ways that will present challenges for employers.
Christopher Shur, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.