Trio of Biden Labor Agency Nominees Advance to Full Senate (2)

May 12, 2021, 8:41 PMUpdated: May 12, 2021, 10:32 PM

Three Biden administration labor and employment nominees—including picks for top attorney at the National Labor Relations Board and U.S. Labor Department—can be considered by the full Senate following votes by the chamber’s labor panel on Wednesday, the committee announced.

The selection that drew the most controversy, Jennifer Abruzzo for NLRB general counsel, will be eligible for a vote by the full chamber after an 11-11 tie in committee that broke down along party lines. If Abruzzo prevails in that vote to discharge her nomination from committee, Majority Leader Chuck Schumer (D-N.Y.) will be able to schedule another vote to tee up a final confirmation vote.

Republicans hounded Abruzzo at her April 29 confirmation hearing over President Joe Biden’s decision to fire Trump-appointed NLRB top lawyer Peter Robb on his first day in office, months ahead of the expiration of Robb’s term.

The Senate Health, Education, Labor, and Pensions Committee also signed off on Seema Nanda to serve as solicitor of labor, DOL’s No. 3 overall position, and Jocelyn Samuels for a new term on the U.S. Equal Employment Opportunity Commission. Both of those votes were 14-8.

GOP Sens. Susan Collins (Maine), Lisa Murkowski (Alaska), and Bill Cassidy (La.) voted to advance Samuels, while Collins, Murkowski, and Mitt Romney (Utah) backed Nanda.

At Abruzzo’s confirmation hearing last month, Senate HELP ranking member Richard Burr (R-N.C.) had pressured the nominee, a former NLRB official and union lawyer, to say whether she had a hand in preparing for Biden’s sacking of Robb, during her service on the Biden transition’s review team for labor agencies.

Abruzzo conceded that she dealt with NLRB policy directly as part of the 25-person team, but initially said she had “no involvement” in the decision to fire Robb. She later acknowledged that she and others determined that concerns outside groups had raised over Robb’s “operational management” needed to be “elevated.”

It wasn’t immediately clear when the full Senate would vote on whether to discharge Abruzzo’s nomination from committee, a process necessitated by the divided Senate, where Democrats hold a tie-breaking vote in the person of Vice President Kamala Harris.

Timing on when Nanda and Samuels will advance to a Senate floor vote also wasn’t clear.

Nanda previously was deputy labor solicitor and DOL chief of staff in the Obama administration for then-Labor Secretary Tom Perez. She later worked under Perez as the Democratic National Committee’s chief executive officer.

Samuels, a Democrat, already serves on the EEOC, after being confirmed last year. She has been nominated for a new, five-year term.

Robb Controversy

Biden’s Inauguration Day termination of Robb will continue to cast a shadow over Abruzzo, even if she’s confirmed.

The concerted GOP opposition she’s faced comes amid an unresolved legal debate over the legitimacy of Robb’s ouster.

Republicans argue that the independent labor board should be walled off from political interference, leading to claims that the current acting NLRB legal chief Peter Sung Ohr was improperly appointed. Businesses have filed a series of claims to the board contending that the NLRB’s prosecution of ongoing cases should be dismissed because of Robb’s unlawful removal.

The labor board last month declined to rule on those claims, saying federal courts are responsible for answering such questions.

Legal tests into the validity of decisions from Robb’s successor will likely continue to flow into the board if Abruzzo assumes the general counsel post.

(Updated with additional reporting starting in the 12th paragraph.)

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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