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Employers Prep for Fight Over Next Top NLRB Attorney’s Authority

March 5, 2021, 3:00 PM

Business allies are readying a new slate of legal and political challenges to the confirmation of Jennifer Abruzzo, President Joe Biden’s nominee for top attorney at the federal labor board, arguing she’s being appointed illegally.

Abruzzo’s nomination for National Labor Relations Board general counsel was sent to the Senate on Feb. 17; a confirmation hearing hasn’t been scheduled yet. Management-side lawyers—worried that once she takes control, Abruzzo will roll back policies cemented by her Republican predecessor—already are mapping out a counterattack based on the idea Biden illegally fired Peter Robb, the previous general counsel, and that Abruzzo’s appointment is void.

As such, they’ll argue any action Abruzzo takes before Robb’s term would have ended in November is unenforceable, according to several people familiar with the plan. Management attorneys and Republicans also are looking into whether she played a role in Robb’s firing as a member of the Biden transition team, according to people familiar with the efforts.

“The only lawfully sitting general counsel of the board through his term is Peter Robb,” said Roger King, a senior labor and employment counsel at HR Policy Association, a trade group representing Fortune 500 companies. “I don’t see the primary legal issue—challenge—being any different.”

The strategy emphasizes how badly business groups want reprisal for Robb’s firing, which they saw as an infringement on the board’s independent status. Any challenge could consume time and resources from Abruzzo’s office, making it harder to carry out Democrats’ agenda of aggressively prosecuting bad actors and rebuilding the agency’s regional offices.

“It may be that the employers don’t really expect to win at the end of the day, but delay tends to be their friend anyway,” said Jeffrey Hirsch, a University of North Carolina law professor and former NLRB attorney. “If they can muck up the works a little bit, all the better.”

National Labor Relations Board General Counsel Peter Robb testifies before a House panel in March 2020.
Photographer: Sarah Silbiger/Bloomberg

Challenges Start

Several companies already have challenged the authority of the acting general counsel, Peter Sung Ohr, who stepped in after Biden fired Robb’s deputy, Alice Stock, on Jan. 21. The Republican-controlled board on March 1 turned down an opportunity to weigh in on whether Ohr was legitimately appointed, signaling they’re not eager to take up the issue.

Management attorneys describe the planned challenges against Abruzzo as a continuation of those efforts. They’ll likely come in response to specific unfair labor practice charges filed by her office, meaning the exact details of the cases aren’t yet known. But the fundamental argument is already crystallized.

King, citing conversations with management attorneys, said more challenges will come, because the Article II Constitutional “appointments clause challenge is there whether it be Abruzzo or Ohr.”

Management lawyers will have a harder time proving Abruzzo lacks authority once she’s confirmed by the Senate.

“You have the president saying you can do this, you have the Congress saying you can do this,” said Anne Lofaso, a law professor at West Virginia University and a former attorney with the NLRB’s Supreme Court branch. “It becomes very hard for the Supreme Court to overturn that.”

The NLRB general counsel acts as a prosecutor, pursuing unfair labor practice charges before the five-member board and advocating for workers trying to form unions.

The National Labor Relations Act lays out conditions for board members to be removed but stays silent on the general counsel—the source of the disagreement on on whether the general counsel serves at the pleasure of the president. In a memo the day after Robb’s firing, the AFL-CIO argued that the absence of language otherwise “confirms the president’s authority to remove the general counsel.”

The National Right to Work Foundation “will of course consider pursuing challenges to Abruzzo’s authority on a case-by-case basis in the interests of the workers they are representing,” Vice President Patrick Semmens said in a statement to Bloomberg Law.

In addition, Semmens said he expects senators to probe Abruzzo on Robb’s firing in her confirmation hearing.

“Abruzzo will have to answer tough questions from Senators about how, assuming she believes Robb’s removal was lawful, she can then be trusted to act independently while supporting Biden’s power to remove her for any reason at all, including because it advances the interests of some of the President’s biggest donors,” he said.

Abruzzo declined to comment for this article.

‘What Did She Know?’

Sen. Richard Burr (R-N.C.), the ranking member on the Senate Labor panel, signaled at a confirmation hearing for Labor secretary nominee Marty Walsh that he’d look into the issue further, calling it a “disturbing signal from an administration preaching the need for bipartisan unity.”

Business allies also plan to probe Abruzzo’s role in Robb’s ouster as a member of the Biden transition team, given that she was already considered a favorite for the general counsel job before Biden took office.

“What did she know about Mr. Robb and when did she know it?” said Michael Lotito, an attorney and lobbyist with the employer-side firm Littler Mendelson. “What recommendations was she making and to whom with respect to what quote-unquote ‘needed to be done’?”

“There’s going to be a number of very penetrating questions that are going to need answers,” he added.

While the controversy over Robb’s firing isn’t expected to derail Abruzzo’s nomination, it’s been gaining notice in Republican circles.

Four GOP senators led by Sen. Rand Paul (R-Ky.) sent Biden a letter Feb. 19 calling Robb’s termination “nakedly political” and reminiscent of former President Richard Nixon’s firing of Watergate Special Prosecutor Archibald Cox in 1973, a move that prompted the resignations of two top Justice Department officials and became known as the Saturday Night Massacre.

More than two dozen business groups sent a letter March 1 asking Biden to reinstate Robb, saying the move will “no doubt politicize enforcement and undermine the effectiveness and credibility of the NLRB now and in the future.”

Robb hasn’t yet sued the Biden administration over his firing. He is still weighing options, ranging from a lawsuit over back pay and benefits to a constitutional challenge over his removal, said King, a close confidant.

“The bottom line here is this issue isn’t going away as much as the left might like it to go away,” King said.

—With assistance from Robert Iafolla

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

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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