Last Wednesday, President Joe Biden needed a tie-breaking vote from Vice President Kamala Harris to confirm his nomination of Jennifer Abruzzo for General Counsel of the National Labor Relations Board. The Senate split the vote along party lines 50-50 and Vice President Harris broke the tie, confirming Abruzzo 51 to 50.
Abruzzo’s confirmation was not only extremely close but was also surrounded by controversy. The NLRB GC position was made available in January, when President Biden made the unprecedented move of firing existing NLRB GC Peter Robb during his term, without cause, only hours after being inaugurated. That decision has been challenged in the courts. However, last week a New Jersey district court ruled that the President does have the authority to fire the NLRB GC without cause. This ruling although not binding on other districts will make it more difficult to challenge Biden’s decision and any rulings made by the interim GC in the last six months.
Abruzzo, a former attorney with the Communications Workers of America Union, wasted little time in ensuring that the high-level positions in her office are being staffed with those who share her pro-labor agenda. Last week, shortly after her confirmation, Abruzzo named Peter Sung Ohr, the Acting NLRB GC, as her associate general counsel and appointed Jessica Rutter, who worked at the NLRB during the Obama administration and recently was serving in a high-level position with the American Federation of Teachers Union, as deputy general counsel.
As a result of the Abruzzo confirmation and these appointments, employers should expect some very pro-labor interpretations out of the NLRB’s Division of Advice, which is run by the legal arm of the NLRB.
The current Board remains pro-employer as three of the four board members currently serving are Trump appointees with pro-business backgrounds. However, in late August, the Board term of William Emanuel, a former management-side labor attorney with Littler Mendelson, Morgan Lewis, and Jones Day will expire. That leaves two open positions on the Board, both of which President Biden can fill with pro-labor nominees.
Biden has nominated David Prouty, General Counsel with SEIU 32BJ, a New York-based union that represents employees in the property management industry, and Gwynne Wilcox, a long-term partner of the New York-based union law firm Levy Ratner, PC.
Employers will want to keep a close eye on these nominations and the confirmation hearings. If these two individuals are confirmed (and we suspect they will be by the same 51 to 50 vote), the power at the NLRB will completely shift to the union side, and employers can expect markedly different rulings from the Board then in the last 4-5 years, particularly in areas of the law related to providing unions access to organize employees and the promotion of unionization in the American workplace.