New NLRB Top Lawyer Moves to Safeguard Agency’s Biden-Era Work

The National Labor Relations Board’s new general counsel has tried to defuse a legal challenge related to the firing of the agency’s Trump-era top lawyer, in her first of what will likely be many ratifications of her immediate predecessor’s work.

General Counsel Jennifer Abruzzo last week filed a notice approving former Acting General Counsel Peter Sung Ohr’s actions in an unfair labor practice case against business software firm Exela Enterprise Solutions Inc.

Exela argued that President Joe Biden lacked the legal authority to sack then-General Counsel Peter Robb in January, roughly 10 months before Robb’s term was set to expire, rendering Ohr’s appointment invalid. Other employers have raised the same arguments when defending against allegations that they violated federal labor law.

Abruzzo said in her one-page memo ratifying Ohr’s actions that the February complaint issued against Exela and the prosecution of the case “were and are a proper exercise of the General Counsel’s broad and unreviewable discretion” under the National Labor Relations Act. She said she made the decision after reviewing the case and consulting with her staff.

A similar ratification strategy helped protect more than two years’ worth of the agency’s work that was put at risk 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 ruled was illegal in 2017.

Solomon’s actions were ratified by then-General Counsel Richard Griffin after Griffin’s confirmation in 2013.

Case in Court

Exela’s case is being briefed at the U.S. Court of Appeals for the Fifth Circuit, which could give that court the first crack at weighing in on the lawfulness of Robb’s ouster and the validity of Abruzzo’s ratification.

In an unconnected case, a New Jersey federal judge said last month that presidents have the power to remove NLRB general counsels without cause, in a decision granting the agency an injunction against an employer. But the judge didn’t specifically rule on Biden’s termination of Robb.

The issue of Robb’s firing arises in Exela’s opposition to the United Steelworkers representing workers at the company’s facility in New Brunswick, N.J. A majority of the workers voted for the union in a 2019 election.

The NLRB ruled in May that Exela violated federal labor law by refusing to bargain with the union. The board declined to rule on the company’s Robb-firing challenge, citing its earlier decision that punted that issue to the courts.

The U.S. Justice Department has joined the case at the Fifth Circuit to argue Biden had the authority to fire Robb.

NLRB spokesman Nelson Carrasco declined to comment.

Exela’s attorney, Daniel Schudroff of Jackson Lewis P.C., didn’t immediately respond to telephone and email requests for comment. United Steelworkers Associate General Counsel Katherine Shaw didn’t immediately respond to a telephone request for comment.

The case is Exela Enterprise Solutions, Inc., N.L.R.B., Case 22-CA-272676, notice of ratification 7/28/21.