No Summer Pause At The NLRB, As Changes At The Top Levels Of The Agency Are In Motion (US)
This summer has been an eventful one as far as it relates to high-level personnel matters at the National Labor Relations Board’s headquarters in Washington, D.C.
Developments in the Office of the General Counsel
As one of his first acts on Inauguration Day, President Biden fired Peter Robb, the Senate-confirmed General Counsel of the National Labor Relations Board (“NLRB” or “Board”), even though Mr. Robb’s four-year term had nearly 10 months left in it. The General Counsel is the agency’s chief prosecutor, and in that role, among other things, is responsible for bringing cases before the five-member NLRB and in the federal courts, and thereby has a significant hand in shaping the nation’s labor policy. The union and worker rights community widely considered Mr. Robb to be hostile to their interests, and those groups celebrated not only when Mr. Robb was precipitously terminated, but also when Peter Sung Ohr, a long-time NLRB official considered to be more favorably aligned to their interests, was installed as Acting General Counsel.
Because only properly-appointed General Counsels or those validly appointed to serve in that role in an interim capacity can issue complaints under the National Labor Relations Act, since Mr. Robb’s termination, numerous employers involved in NLRB proceedings have raised challenges to complaints issued by his replacement, Mr. Ohr, arguing those complaints are invalid because Mr. Robb as General Counsel was improperly removed by the President, Mr. Ohr therefore was not properly serving in an acting capacity, and he thus lacked statutory authority to issue complaints alleging violations of the National Labor Relations Act. The Board has declined to take a position on such defenses, indicating the issue should be resolved in the courts.
On July 14, 2021, the first court decision involving a challenge to Mr. Ohr’s authority issued in Goonan v. Amerinox Processing, Inc. In that matter, which involved a request by an NLRB Regional Director for an injunction under Section 10(j) of the National Labor Relations Act, a New Jersey federal district court judge ruled that unlike Board members, who can be removed by the President only for cause following notice and hearing, Presidents may remove General Counsels at their prerogative. However, because this issue arose in the context of a request for an injunction under Section 10(j), requests for which are authorized by Board members and not the General Counsel, the court’s ruling in Amerinox likely will not be the last word on the issue, as employers may continue to challenge litigation brought against them in complaints issued by the agency, which are issued under the General Counsel’s, not the Board members’, authority.
Somewhat lost in the dust-up over Mr. Robb’s firing was the President’s nomination of Jennifer Abruzzo to be the next permanent NLRB General Counsel. Ms. Abruzzo was a long-time NLRB attorney in Washington, D.C., serving in various high-level roles with the agency over two decades. Most recently, she has been special counsel to the Communication Workers Union. After predictably partisan committee hearings that resulted in a deadlock, Ms. Abruzzo’s nomination advanced to the Senate floor, where, on July 20, a divided Senate voted 51-50, with Vice President Harris casting the tie-breaking vote, to limit debate on Ms. Abruzzo’s appointment. On July 21, the Senate confirmed Ms. Abruzzo as the new NLRB General Counsel, again on a 51-50 vote, with all Senate Republicans voting no and with Vice President Harris again casting the tie-breaking vote in favor of confirmation. In her new role as General Counsel, Ms. Abruzzo is expected to reverse the course established by her predecessor, and to seek through exercise of her prosecutorial discretion to unwind many of the pro-business decisions issued by the NLRB under the Trump Administration.
Developments in Board Member Appointments
The NLRB is comprised of five members, one of whom serves as Chairman, all appointed by the President and subject to confirmation by the Senate. Currently, the NLRB is chaired by Chairman Lauren McFerran, a Democrat appointed by President Obama and elevated in January 2021 to Chairman by President Biden. The other current NLRB members are former Chairman John Ring, Marvin Kaplan, and William Emanuel, each of whom is a Republican appointee, and there is currently one vacant NLRB member spot. Although Members Ring’s and Kaplan’s terms run for several more years (through December 2022 and August 2025, respectively), Member Emanuel’s term expires in just a few weeks, on August 27, 2021.
Traditionally, a majority of NLRB members share the same political affiliation as the current President. Therefore, President Biden recently nominated two Democrats, Gywnne Wilcox and David Prouty, to serve as Board members – Ms. Wilcox to fill the vacant NLRB seat, and Mr. Prouty to replace Member Emanuel when his term ends in August 2021. Ms. Wilcox and Mr. Prouty have long-standing and deep ties to organized labor. Ms. Wilcox is an attorney in private practice and has represented labor unions throughout her career, as well as serves as assistant general counsel to SEIU Local 1199, one of if not the nation’s largest healthcare union. Mr. Prouty currently is general counsel of SEIU Local 32BJ, the largest union representing property service workers, and prior to that, was an in-house lawyer at several other unions. If Ms. Wilcox and Mr. Prouty are confirmed, as is expected, Democrat appointees will hold a majority of Board seats for the first time since 2016, paving the way for a steady stream of decision-making reversing or scaling back many decisions of what was perceived to be a pro-employer NLRB under the prior presidential administration.