Between the close of business on Monday, January 27 and the following morning, President Trump discharged Jennifer Abruzzo from her duties as the general counsel for the National Labor Relations Board. Jessica Rutter was elevated from deputy general counsel to acting general counsel, the agency announced Tuesday.
It was anticipated that President Trump would remove Abruzzo in the manner President Biden terminated General Counsel Peter Robb on inauguration day. The President’s authority to remove the general counsel was upheld by the courts.
However, in a surprising and completely unprecedented move, President Trump removed NLRB Member Gwynne Wilcox. Ninety-year-old Supreme Court precedent has so far shielded Board members, Federal Reserve chairs, and other officials on agency boards from removal by presidents, but this restriction on presidential authority has been challenged in a number of pending lawsuits. The President’s removal of Wilcox is expected to be the subject of litigation.
Wilcox was confirmed by the Senate on September 6, 2023, for a second Board member term ending August 27, 2028. Her removal prevents the Board from having a quorum of at least three members it needs to decide cases according to a US Supreme Court decision from 2010. NLRB Chair, Marvin Kaplan, the sole Republican, and Democratic member David Prouty remain, leaving three vacancies on the NLRB.
When Abruzzo was named the NLRB’s top prosecutor on July 22, 2021, she quickly set forth the Agency’s agenda, starting with her first “Mandatory Submissions to Advice” memo, GC 21-04, issued August 12, 2021 which directed the various regional offices to funnel certain types of cases involving the entire spectrum of labor law issues to her office for consideration as to how those cases will be argued and prosecuted.
For example, Abruzzo sought to overturn the first Trump Administration’s Boeing decision, providing a three-category framework for evaluating the lawfulness of work rules. The NLRB overruled Boeing in short order.
A week later, she pushed for more aggressive use of extraordinary injunctive relief, calling for its preventative use, instead of only in cases where egregiously unlawful conduct had been committed, or when traditional remedies were inadequate. Two weeks after that, she announced her goal to recover a broader scope of ‘consequential damages’ for unfair labor practices, including for example recovering credit card late fees, doctor’s fees, and car costs associated with an individual’s unlawful discharge.
Abruzzo issued a total of thirty (30) GC memorandums. A new General Counsel appointed by Trump is expected to rescind and issue their own memos outlining the agenda for the Agency in the upcoming administration.
Husch Blackwell labor attorneys are staying up to date on changes to NLRB policy changes and legal challenges to the agency’s authority.