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First Up For New NLRB Top Lawyer: Protect Early Biden-Era Work

July 22, 2021, 9:46 AM

A top agenda item for the newly confirmed NLRB general counsel will be dealing with legal challenges to the agency’s work based on President Joe Biden’s Inauguration Day firing of its Trump-era top lawyer, board watchers said.

Jennifer Abruzzo, who won narrow Senate approval on Wednesday, will likely ratify the actions taken by Peter Sung Ohr, the acting general counsel appointed to replace Peter Robb, soon after she takes over the National Labor Relations Board’s legal arm, observers said.

“I have little doubt that she would ratify all of Ohr’s actions,” said Wilma Liebman, a former NLRB chair during the Obama administration. “That seems a no brainer to me.”

Biden sacked Robb and his top deputy 10 months before the scheduled end of Robb’s tenure. Employers have argued Ohr’s actions are invalid because Biden couldn’t oust Robb without cause.

A similar ratification strategy helped save more than two years’ worth of the agency’s work that was put in jeopardy by Lafe Solomon serving as the acting general counsel while he was also the nominee for general counsel from 2011 to 2013, which the U.S. Supreme Court held was illegal in a 2017 ruling.

Solomon’s actions, like authorizing unfair labor practice complaints, were ratified by then-General Counsel Richard Griffin after Griffin’s confirmation in 2013.

NLRB Signal

The NLRB raised the prospect of Abruzzo ratifying Ohr’s actions while defending against a challenge to Ohr’s authority in a federal court injunction proceeding. Agency lawyers said a final board ruling in the underlying case probably won’t be issued until after Robb’s four-year term would have expired in November.

“And between now and the issuance of a final Board order, there is at least a reasonable possibility that the actions of Acting General Counsel Ohr will have been ratified by a Senate-confirmed General Counsel, thereby mooting Respondent’s legal arguments,” the NLRB said in a brief.

A federal judge issued the injunction in that case last week, saying that presidents have the authority to fire NLRB general counsels without cause but not ruling on the legality of Biden’s termination of Robb.

Litigation Won’t Stop

The NLRB, which has declined to rule on Robb’s termination, will likely accept that Abruzzo’s ratification of Ohr’s actions would cure any alleged legal defects to prevent the agency’s work from being disrupted, said Daniel Schudroff, a labor lawyer with the management-side firm Jackson Lewis P.C.

But that doesn’t mean employers will stop mounting challenges based on Robb’s termination—or prevent the legal issue percolating in federal courts, potentially all the way to the U.S. Supreme Court, he said.

A key element to employer objections to Ohr was that he filled a position that wouldn’t have been vacant but for Robb’s ouster. They could similarly challenge actions that Abruzzo makes prior to the scheduled end of Robb’s term in November, board watchers said.

“If I have a case before the board prior to the November date, I would still raise Robb’s unlawful termination as an affirmative defense, even to actions that Abruzzo may take,” said Jerry Hunter, a former NLRB general counsel during the George H.W. Bush administration who represents employers at Bryan Cave Leighton Paisner LLP.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

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

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