Less than a month after President Biden fired NLRB General Counsel Peter Robb, Biden has nominated Jennifer Abruzzo as the next GC of the NLRB. As you may recall, Biden fired Peter Robb after Robb declined to comply with Biden’s ultimatum that he resign or be terminated. The story goes that minutes after Biden’s inauguration, Robb received an email requesting his resignation and notifying him that failure to comply would result in termination.

Jennifer Abruzzo currently serves as Special Counsel for Strategic Initiatives for the Communications Workers of America. Previously, Abruzzo was Acting General Counsel at the NLRB. Abruzzo has a long history of working at the NLRB, including working as a field attorney, supervisory field attorney, deputy regional attorney in the Miami office, and Deputy Assistant General Counsel.

Prior to Abruzzo’s nomination, NLRB Acting General Counsel Peter Sung Ohr has rescinded numerous advice memos issued by the Trump Board, which is a signal that the Biden administration intends to keep its promises related to union rights, especially with the PRO Act’s passage in the House of Representatives during the first week of November. While it is not expected that the bill will gain any headway in the Republican controlled Senate, the actions of Peter Sung Ohr and the appointment of Jennifer Abruzzo ensures that employers will have an interesting four years as it is expected that union activity will increase dramatically. Throw in the passage of the PRO Act, which would dilute right-to-work laws, and unions could gain significant control in the American workplace.  

Perhaps one of the most interesting questions facing Biden’s replacement of Peter Robb is whether or not Robb’s termination is constitutional. In fact, just two weeks ago, United States Senators Rand Paul, Tom Cotton, Rick Scott, and Mike Braun sent Biden a letter condemning his termination of Peter Robb as unconstitutional because “for cause removal applies to term-limited political appointees at quasi-judicial agencies, even if they perform substantively executive functions within those agencies.”

Although Biden’s nomination of Abruzzo is still pending, one thing is certain: Biden will keep his promise to unions that he made during the 2020 election campaign. Employers can expect an increased union presence over the next four years. Most notably, the shift in political power at the administrative level will lead to an uptick in union elections and unfair labor practice charges filed against employers resistant to the change. We will keep you abreast of any new updates relating to changes at the NLRB or the PRO Act.

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