Labor Board Approves Top Lawyer’s Move to Guard Biden-era Work

A divided National Labor Relations Board signed off on a strategy by the agency’s top lawyer to insulate cases from objections based on President Joe Biden’s termination of its Trump-era general counsel.

The NLRB’s Democratic majority pointed to General Counsel Jennifer Abruzzo’s ratification of actions in an unfair labor practice case against a Pennsylvania hospital taken by the acting g.c. installed after Biden fired Peter Robb. The ratification mooted a hospital’s argument that Robb’s ouster was illegal and invalidated the case against it, the board said in its Tuesday ruling.

Abruzzo has ratified actions taken by acting General Counsel Peter Sung Ohr following Robb’s removal in other cases. A similar strategy protected cases that an Obama-era acting general counsel oversaw at the same time he was the nominee to become general counsel. The U.S. Supreme Court later ruled that it was illegal for the official be the nominee for while occupying the same position on an acting basis.

In rejecting Wilkes-Barre General Hospital’s challenge, the board’s majority also said that Biden had the legal authority to sack Robb. It cited its December ruling that set forth the NLRB’s view on the general counsel’s lack of removal protections.

The NLRB’s two Republican members expressed no view on the legal effect of Abruzzo’s ratification. There was no need to reach the ratification issue in light of the board’s precedent that the firing was authorized by federal labor law, they said.

The board unanimously ruled that the hospital unlawfully refused to bargain with a union representing nurses and other health care workers.

Wilkes-Barre General Hospital’s lawyer, Kaitlin Kaseta of Carmody & Carmody LLP, didn’t immediately respond to requests for comment.

The case is Wilkes-Barre Hospital Company d/b/a Wilkes-Barre General Hospital, N.L.R.B., Case 04-CA-259936, Decision 2/1/22.