NLRB Top Attorney Sued Over ‘Captive Audience’ Meeting Guidance

A group of staffing firms sued to prevent the NLRB general counsel from arguing that federal labor law prohibits forcing workers to attend anti-union meetings.

National Labor Relations Board General Counsel Jennifer Abruzzo’s April guidance memo targeting mandatory anti-union meetings violates employers’ First Amendment right to present their views on unions, the staffing firms said in a complaint filed in the US District Court for the Eastern District of Texas.

The staffing firms want a court to set aside the guidance as unconstitutional and block the NLRB general counsel’s office from enforcing it through litigation. Agency lawyers acting under the general counsel’s aegis bring unfair labor practice cases, while administrative law judges and the board adjudicate them.

The lawsuit could imperil Abruzzo’s legal assault on what are known as “captive audience” meetings, one of the most potent tools employers use to resist union campaigns. She argued they inherently threaten workers with discipline or other reprisal if they exercise their right not to listen to employers’ claims about unionization.

NLRB lawyers who act as prosecutors in unfair labor practice cases have claimed Amazon.com Inc. and other employers violated federal labor law by holding compulsory meetings to denounce unions.

Abruzzo’s guidance memo cited the US Supreme Court’s 1945 decision that invalidated a Texas law regulating union organizers, in which the justices said the First Amendment protects employers’ ability to persuade workers against joining unions, but that protection ends when they add coercion to their attempts at persuasion.

Although Abruzzo’s memo specifically focused on mandatory meetings and situations when workers are cornered while doing their jobs, the staffing firms’ lawsuit claims her intent was to broadly chill employer speech about unionization.

“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,” the companies say in their July 18 complaint.

The staffing firms said they’ve “historically opposed unionization in their work force,” but haven’t held any meetings nor spoken to workers about unions due to the threat posed by the memo.

The case was assigned to US District Judge Amos Mazzant, who struck down the Obama administration’s plan to expand overtime eligibility to approximately 4 million workers.

The staffing firms’ lawyer, Matthew Miller of the Texas Public Policy Foundation, said the idea that an employer’s meeting to discuss unionization is captive or compelled “takes something that’s normal and makes it seem malevolent or unfair.”

NLRB spokeswoman Kayla Blado declined to comment on the lawsuit.

Cause of Action: First Amendment

Relief: Declare that guidance violates First Amendment; set aside guidance; enjoin NLRB from enforcing guidance; attorneys’ fees and costs.

The case is Burnett Specialists v. Abruzzo, E.D. Tex., No. 4:22-cv-00605, complaint filed 7/18/22.