Legal Guidance or Abuse of Power? NLRB’s Abruzzo faces second lawsuit for captive audience memos.
Posted on Apr 14, 2023 on Employment-at-Will / Restrictive Covenants by
We previously reported on how the NLRB’s General Counsel, Jennifer Abruzzo, issued a memo urging the Board to prohibit captive audience meetings. These are mandatory meetings employers hold to express their opinion that unions are not helpful to the workplace. Now, Abruzzo is facing a second lawsuit from Employers who say her memo went too far.
Abruzzo was first sued for her captive audience memo last year when a group of staffing firms asked a federal judge to enjoin the memo that laid out Abruzzo’s legal theory for finding captive audience speeches unlawful.
The staffing firms claimed Abruzzo’s guidance was unconstitutional and therefore the NLRB’s General Counsel’s office could not enforce it. The staffing firms allege that “Abruzzo’s Guidance Memo signals to Plaintiffs and all employers that they could be subject to charges and a complaint if they speak out against unionization or even provide neutral information such as the NLRB election process and employees’ rights [to oppose the union]. . . .” The case does not have a trial date set, but the pre-trial conference will be held on December 7, 2023. The wheels of “justice” move at a glacial pace!
Now, Abruzzo is facing a second lawsuit. On March 16, 2023, the Associated Builders and Contractors of Michigan (ABC) filed a separate request for injunctive relief. ABC’s suit says Abruzzo’s memos are akin to attempts “to intimidate employers so they will not express their opinion on unions at meetings that employees must attend, or risk that Abruzzo will prosecute them before the National Labor Relations Board for an unfair labor practice.” ABC alleges this violates Supreme Court precedent, which prohibits government officials from making threats of prosecution that amounts to a censorship scheme abridging First Amendment liberties.
Both lawsuits are pending in federal court. If either lawsuit results in an injunction against Abruzzo’s guidance, it could have a huge impact on Abruzzo’s strategy moving forward. Abruzzo has relied on issuing guidance to advance many of her policy goals—from Joy Silk to 10j injunctions. A failure here might create the map other employers will follow for other extreme guidance she has or will issue. Time will tell.
Brody and Associates regularly advises management on all issues involving unions, staying union-free, complying with the newest decision issued by the NLRB, and training management on how to deal with all these challenges. If we can be of assistance in this area, please contact us at email@example.com or 203.454.0560.