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Labor Board Signs Off on Abruzzo’s Authority, Robb Ouster (1)

Dec. 30, 2021, 7:55 PMUpdated: Dec. 30, 2021, 9:38 PM

The National Labor Relations Board rejected a challenge to the authority of its general counsel, saying that President Joe Biden lawfully removed the agency’s top lawyer from the Trump era.

The U.S. Supreme Court eliminated any doubt that Biden had the power to fire Peter Robb in its June decision in Collins v. Yellen, a divided NLRB said Thursday. Biden went on to nominate Jennifer Abruzzo for the agency’s general counsel role and she subsequently won Senate confirmation, the board noted.

The California-based nursing facility that contested Abruzzo’s authority “offers no legal theory suggesting that a Senate-confirmed, Presidentially-appointed General Counsel cannot validly exercise the statutory powers of the General Counsel under the National Labor Relations Act,” the board’s Democratic majority said.

The NLRB had declined in April to rule on arguments related to Robb’s firing, leaving it to federal courts. But the Supreme Court’s ruling in Collins, Abruzzo’s confirmation, and going past the Nov. 17 expiration of Robb’s term “counsel a different approach here,” the majority said.

The issue arose in a case against Park Central Care and Rehabilitation Center for refusing to bargain with an Service Employees International Union affiliate. The full five-member board ruled that the company violated federal labor law by not negotiating with the union.

But the NLRB split along partisan lines on Robb’s firing and Abruzzo’s authority. The board’s two Republican members said in a concurring opinion that the board should have continued to decline to rule on that matter and leave it to the courts.

Eliminating Doubt

The Supreme Court ruling that changed the Democratic NLRB members’ minds about ruling on allegations related to Robb’s firing concerned a shareholder lawsuit brought by Fannie Mae and Freddie Mac investors. The decision spoke to the president’s power to remove the director of the Federal Housing Finance Agency, including some general precepts seized on by the NLRB majority.

The high court’s Collins opinion set forth two presumptions: an agency head serves at the pleasure of the president unless a law says otherwise; and Congress acts intentionally and with purpose when it includes language in one section of a statute but omits it in another part of the same law. Meanwhile, the NLRA specifies conditions that would allow a president to remove NLRB members, but doesn’t have similar language for general counsels.

“Applying these two presumptions to the Act, Collins makes clear that Congress did not intend to limit the President’s power to remove the General Counsel, as it did with respect to Board Members,” the board said.

Even if that Supreme Court ruling didn’t resolve the dispute over Abruzzo’s authority, then the Nov. 17 expiration of Robb’s term is significant, the NLRB said. Robb couldn’t serve beyond that date, which arrived after Abruzzo had been confirmed, the board said.

“If there were any conceivable doubt about General Counsel Abruzzo’s authority, it necessarily ended with Robb’s statutory term at the very latest (if not on the date of Abruzzo’s post-confirmation appointment),” it said.

Park Central Care’s attorney, Louis Cannon of Baker & Hostetler LLP, didn’t immediately respond to requests for comment.

The case is Aakash d/b/a Park Central Care and Rehabilitation Center, N.L.R.B., Case 32-CA-282957, Ruling 12/30/21.

(Updated with additional reporting throughout.)

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

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com