In an article published by Law360 on February 18, 2021, Peter Spanos discusses President Joe Biden's nomination of Jennifer Abruzzo to serve as general counsel of the National Labor Relations Board. The nomination of Abruzzo is expected to hit speed bumps along the way to Senate confirmation as the business community's ire over whether the agency's acting general counsel was appointed legally will soon shift to her.
Abruzzo will take over for acting general counsel Peter Sung Ohr, who began serving in the role on January 25. When Ohr assumed the acting position, he swiftly pursued new enforcement actions and reversed legal initiatives from President Donald Trump's appointee Peter Robb. Ohr's tenure has been colored by legal challenges claiming he lacks authority to even do the job after Robb's removal.
Among the main arguments that Ohr's appointment violates the National Labor Relations Act, which states that GCs serve four-year terms "with the advice and consent of the Senate," and federal court precedent on the president's power to remove executive branch appointees. As a result, they argue that Biden lacked the power to fire Robb and that Ohr and his successor can't act in his absence.
The Supreme Court's 2020 decision in Seila Law LLC v. Consumer Financial Protection Bureau has been cited as support for Robb's termination. But, Spanos says, "While the Seila Law decision may ultimately end up supporting a finding by the Supreme Court that Robb's firing was lawful that case doesn't directly apply to the NLRB."
"The NLRA has different language that allows the president to remove the agency's board members during their terms, but it's silent regarding the general counsel. Under the law, the general counsel position is a four-year term subject to Senate approval, without a provision allowing the president to shorten that term," added Spanos.