NLRB GC Abruzzo Praises Fifth Circuit's Finding Biden's Firing of NLRB GC Robb Was Lawful
On Thursday, the General Counsel of the National Labor Relations Board, Jennifer Abruzzo praised a recent ruling by the United States Court of Appeals for the Fifth Circuit rejecting the argument that President Biden’s Inauguration Day firing of former NLRB General Counsel Peter Robb was improper.
“The team of attorneys on this case did an excellent job representing the NLRB on this important issue,” NLRB General Counsel Abruzzo stated in a press release. “The Fifth Circuit’s well-reasoned decision will undoubtedly make a difference for employee rights throughout the country.”
The case is an important one for companies, unions and the NLRB itself, as the premise behind the employer’s argument is that the actions taken by the replacement General Counsels—including the issuance of an unfair labor practice in the instant case—should be invalidated “because the President unlawfully removed the former General Counsel without cause.”
Background…
The controversial firing of National Labor Relations Board General Counsel Peter Robb was one of President Joe Biden’s first moves as President, which took place “mere minutes” after he was sworn in on Inauguration Day.
Since Robb’s “unprecedented” firing nearly 10 months before his term were to have expired, several challenges to the legitimacy of Robb’s replacement General Counsels—first, Acting General Counsel Peter Sung Ohr, then current General Counsel Jennifer Abruzzo—have been made through challenges to NLRB rulings.
While it is not known whether the employer in the the Fifth Circuit case will appeal the decision to the U.S. Supreme Court, it merits watching because, as Bloomberg noted last year, it could affect a great number of cases and has some legal precedence:
During the Obama administration, the NLRB faced a legal attack on a general counsel’s authority that culminated in the high court’s 2017 ruling in NLRB v. SW General. The court found that Lafe Solomon, an acting GC, wasn’t eligible to continue in that post after he was nominated to be the agency’s Senate-confirmed top lawyer.
That ruling undercut the legitimacy of complaints Solomon issued following his nomination, but the NLRB managed to minimize its damage to other cases.
Although the NLRB minimized the damage done to the cases Solomon had prosecuted while unlawfully in his postion, Solomon’s successor simply “ratified complaints that Solomon issued under the general counsel’s unreviewable prosecutorial discretion,” according to Bloomberg.
Ironically, however, by fighting to uphold the at-will firing of former General Counsel Robb for partisan (union) purposes, General Counsel Abruzzo may be helping to establish a precedence for a future U.S. President (of the opposing party) to fire her without cause.
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