President Trump’s Termination of General Counsel Jennifer Abruzzo

President Trump’s Termination of General Counsel Jennifer Abruzzo

On January 28, 2025, the Trump Administration terminated Jennifer Abruzzo from her position as General Counsel of the National Labor Relations Board (NLRB). Jennifer Abruzzo was nominated by President Biden in 2021 shortly after his inauguration.  

Role of the NLRB General Counsel

The Office of General Counsel (OGC) is charged with oversight of NLRB’s litigation program via supervision of Regional Directorates tasked with enforcing and litigating the National Labor Relations Act (NLRA). Through the Regional Directorates, the General Counsel issues Unfair Labor Practice (ULP) citations against labor unions and employers, seeks remedial and equitable relief on behalf of workers who were retaliated against for affiliating with or refraining from affiliating with a union, and supervises representation elections impartially between unions and employers. OGC also handles appeals from the Office of the Administrative Law Judges (ALJ) to the Board, and from the Board directly to federal appellate courts. Under the NLRA, General Counsels serve a four-year term.

Abruzzo’s Tenure at a Glance

Jennifer Abruzzo was nominated and confirmed to her present post as General Counsel in the wake of Peter Robb’s firing. Peter Robb, the incumbent General Counsel appointed by President Trump, was terminated by President Biden at the behest of union supporters on January 20, 2021, at the near conclusion of a statutory four-year term.

Abruzzo’s tenure within the OGC was marked by controversy due to perceptions her favoritism of unions undermined the Board’s neutrality. From her confirmation, Jennifer Abruzzo stated her belief the Board’s purpose was not to impartially arbitrate disputes between labor and management, but to increase union density.[1]  Abruzzo began her tenure in August 2021 by centralizing management of the Regional Directorates in OGC’s DC headquarters and issuing a series of instructions to the Directorates via external memoranda.[2]

Board attorneys under Abruzzo’s tenure made use of exceptions briefing, the practice of OGC taking “exception” to an ALJ’s application of existing law and precedent on appeal to the Board. Once the Board obtained a Democratic majority, exceptions briefing soon became the vehicle by which longstanding precedent of decades was vitiated. For example, Jennifer Abruzzo made no secret of her wish to prohibit so-called “captive audience” meetings-the longstanding practice of employers mandating employees attend meetings for employers to express their views on unionization. For over 70 years, since the Board’s issuance of Babcock and Wilcox, 77 NLRB 577 (1948), the NLRB held such meetings to be in accordance with Section 8(c) of the Taft-Hartley Act, so long as said meetings did not carry the threat of reprisal or promise of benefit.  In Amazon.com Services LLC, 373 NLRB No. 136 (2024), the Democratic majority on the Board adopted Abruzzo’s position.

Abruzzo’s litigation against the free speech rights of employers has gone beyond captive meetings to include third party employer observations. OGC infamously filed a ULP complaint against Amazon CEO Jeff Bezos when he observed, in an interview with CNBC’s Andrew Ross Sorkin, that labor unions add an extra layer of bureaucracy between employees and management.  Though Abruzzo’s tenure as General Counsel has been marked by a crackdown on employer speech, Abruzzo has adopted an expansive interpretation of employee speech, urging the Board revive a permissive set of standards granting racist and sexist picket line rhetoric protection under the NLRA. [3]

Abruzzo also utilized exceptions briefing to urge the Board bar employers from implementing policies mandating civility and hygiene in the workplace. In Stericycle, Inc, 372 NLRB No. 113, (2023), the Board adopted Abruzzo’s position, holding employer handbooks and policies were presumptively unlawful if they were interpreted to limit employee rights. Whether said rules limited employee rights was interpreted not from the standard of a reasonable employee, but from the standard of someone “economically dependent” on the employer. As such, nearly all workplace rules and policies mandating courtesy and civility in the workplace were prohibited under the Board’s Stericycle standard.

Abruzzo’s advocacy has included urging the Board to adopt doctrines favored by unions regardless of circuit court precedent or statutory text. For example, in Atlanta Opera, Inc. 372 NLRB No. 95(2023), the OGC under Abruzzo urged the Board ignore entrepreneurial opportunity and classify nearly all hiring entities as employees subject to unionization, regardless of D.C. Circuit Court precedent.[4] Abruzzo rendered this advice despite the Taft-Hartley Act specifically amending the NLRA to exclude independent contractors from its definition of covered employees. Similarly, Abruzzo argued individual complaints fall under the NLRA’s definition of protected concerted activity, contravening Third Circuit precedent defining concerted activity as group action.[5]

Jennifer Abruzzo’s supervision of OGC’s traditional role overseeing union representation elections has also come under criticism.  Oversight investigations by the Senate and House labor committees unearthed evidence career NLRB employees were violating internal Board regulations by assisting union lawyers. A Hearing Officer account of union partiality by career NLRB employees proved so egregious the results of a representation election at a Starbucks location in Kansas had to be set aside.

OGC Moving Forward

President Trump’s termination of Jennifer Abruzzo is not without precedent, as President Biden similarly terminated Peter Robb upon being sworn in. As the official charged with NLRA enforcement, the General Counsel’s role is within the purview of the executive branch. The NLRA only permits the President to remove a Member of the NLRB for “neglect of duty or malfeasance in office,” however the statute does not provide similar protections for the General Counsel. [6] The Fifth Circuit Court of Appeals upheld Peter Robb’s termination, holding that a President presumptively “holds the power to remove at will executive officers” absent plain language taking that power away.[7]

Without legal course for reinstatement, Jennifer Abruzzo’s tenure as General Counsel has ended. With Associate General Counsel Jessica Rutter also terminated, it seems probable OGC’s leadership will remain adrift until President Trump nominates and the Senate confirms a new General Counsel, who will then presumably drastically alter OGC’s enforcement priorities.

President Trump’s Termination of Member Gwynne Wilcox

In addition to terminating Jennifer Abruzzo, President Trump terminated Gwynne Wilcox as a Member of the NLRB the same day. Gwynne Wilcox, a union side lawyer for Levy Ratner, was confirmed to the Board for an original term in 2021 and confirmed again for a successive five-year term in 2023.

Role of the National Labor Relations Board

The NLRB is a quasi-legislative and judicial body that adjudicates unfair labor practice claims from the ALJ, cases presented before it by the OGC, and promulgates regulations through notice and comment rulemaking.  At full complement, the Board contains five members appointed to staggered five-year terms.

Gwynne Wilcox’s Tenure at a Glance

As a Member, Gwynne Wilcox was a reliable vote for the Democratic majority, joining opinions in Stericycle, 372 NLRB No. 113 (2023); Cemex Construction Materials Pacific LLC, 372 NLRB No. 130 (2023)and Lion Elastomers LLC, 369 NLRB No. 88 (2023).  In Cemex Materials, Wilcox voted with the Democratic majority to undermine the secret ballot in representation elections.

Under the new framework announced in Cemex, when an employer is confronted with a demand for recognition by a union agent, the employer must either recognize the union or file for a representation election. If any ULP was alleged during the representation election, the Board would issue a remedial order requiring the employer to recognize the union, rather than order a re-run election. Employers have criticized Cemex as amounting to little more than extortion, as union representatives would be incentivized to file frivolous ULP complaints to ensure recognition.

As stated above, Lion Elastomers LLC revived permissive standards that allowed employees to engage in racist and sexist rhetoric on the picket lines and to management.  The standards the Board revived had long been criticized for forcing employers to either violate Title VII of the Civil Rights Act for allowing a hostile workplace to proliferate or risk a ULP citation under the NLRA. A unanimous panel of the Fifth Circuit Court of Appeals vacated the NLRB’s Lion Elastomers decision, strongly criticizing the Board for exceeding the scope of a previous remand and denying Lion Elastomers its due process rights without affording the company to brief whether the standards should be revived.[8]

Wilcox also infamously joined Democratic Board Members in promulgating via rulemaking a broad joint employer standard. The standard would have labeled two hiring entities exercising even indirect control over eight essential terms and conditions of employment employers subject to collective bargaining.  Indirect control under the standard was dispositive rather than probative. The joint employer rule was later struck down by a federal district court for exceeding the bounds of the common law.[9]

Prospects for Reinstatement

Unlike the General Counsel, a Member of the NLRB can only be terminated “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”[10] The Supreme Court, in Humphrey’s Executor v. United States, held that the President does not have unlimited power of removal over members of “quasi legislative or quasi judicial agencies” who are acting “in discharge of their duties independently of executive control”.[11]  Member Wilcox could initiate legal action for reinstatement, necessitating a suit that would inevitably touch upon the extent of the President’s removal power.

Implications for Employers

Regardless of whether Wilcox is reinstated, the NLRB’s jurisprudence will revert back to a more impartial posture between employers and unions, with many Biden-era cases that have not already been vacated on the chopping block.  President Trump will nominate a new General Counsel in time who will be charged with dramatically altering the NLRB’s enforcement program. Frivolous lawsuits against employer speech are not likely to re-occur.

As the Board is now deadlocked with only two members, Republican Acting Chair Marvin Kaplan, and Democratic Member David Prouty, it lacks a quorum to hear cases. Former Chair Lauren McFerran’s nomination was rejected by the Senate in December, and, with Member John Ring’s departure, another seat has been vacant since December 2022. Even if Gwynne Wilcox is reinstated, President Trump will have the opportunity to appoint two new Members, drastically altering the Board’s jurisprudence. Employers should continue monitoring developments and adhering to precedent until further notice.

[1] See Lauren Kaori Gurley, “The lawyer who could deliver on Biden’s wish to be the most pro-union president.” The Washington Post, 17 Oct. 2022, https://www.washingtonpost.com/business/2022/10/15/jennifer-abruzzo-union-biden-nlrb/.

[2] Harold Meyerson, “The Memo Writer.” The American Prospect, 30 March 2022. https://prospect.org/labor/memo-writer-jennifer-abruzzo/.

[3]See General Counsel’s Statement of Position to the National Labor Relations Board, Lion Elastomers and United Steel Paper and Forestry Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 228, Cases 16-CA-190681, 16-CA, 203509, 225153.

[4] See FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C. Cir. 2009)(“FedEx I”) and FedEx Home Delivery v. NLRB, 849 F.3d 1123 (D.C. Cir. 2017) (“FedEx II”)

[5] See Mushroom Transp. Corp. v. N.L.R.B., 330 F.2d 683, 685 (3d Cir. 1964).

[6] See 29 U.S.C. § 153(a).

[7] Exela Enter. Solutions, Inc.  v. N.L.R.B., 32 F.4^th 436, 445 (5th Cir. 2022)

[8] See Lion Elastomers LLC, v. N.L.R.B., 108 F. 4^th 252 (2024).

[9] Chamber of Commerce v. N.L.R.B., 723 F. Supp. 3d 498 (E.D. Texas 2024).

[10] 29 U.S.C. § 153(a).

[11] 295 U.S. 602, 629 (1935).