Jennifer Abruzzo, the general counsel of the National Labor Relations Board (NLRB), has been called a “quiet hero” and an “activist championing the rights of workers from the inside” by the mainstream press. But these fawning tributes ignore the pernicious impact of her work. While she may profess pro-worker sympathies, her legally dubious actions have hurt employers and employees alike.
Since assuming her role in July 2021, Abruzzo has issued public memoranda demonstrating a willingness to prioritize unions’ concerns at the expense of laborers. For instance, she has tried to ban secret ballots in workplace elections on whether to unionize, which the NLRB has previously said is the best way to gauge worker sentiment regarding unionization. Instead, she has advocated for requiring employers to negotiate with union officials who have “authorization cards” that purportedly bear the signatures of most employees on-site, a practice that often exposes workers to arm-twisting by organized-labor operatives. Abruzzo has also attempted to rewrite labor law by executive fiat. On one occasion, she suggested that secondary boycotting, a form of labor action in which a union exerts pressure on a company by targeting a third party that does business with the company, amounts to protected speech. According to the Federalist Society, this is an “ends-based” and “constitutionally illiterate” argument that would give unions a “free hand to disrupt local economies.”
But her pro–Big Labor proclivities and disregard for the rule of law don’t end there. Last year, Abruzzo made headlines by issuing a memo that, if adopted, would overturn 75 years of NLRB precedent and strip employers of the right to communicate their opposition to union attempts to organize employees. This contention is an affront to the First Amendment. Freedom of speech is not an exclusive right. If a union wishes to persuade a business’s employees to join the organization, the government cannot impede its peaceful advocacy on the business’s behalf, and employees have the right to discuss the merits of unionization among themselves. Conversely, an employer has the right to explain why he thinks unionization would debilitate the working environment. Besides its constitutional protection, the Supreme Court has ruled that an employer’s right to express, in a non-coercive manner, his views on unionization efforts in his workplace is safeguarded also by the National Labor Relations Act.
Regardless of whether the NLRB adopts Abruzzo’s interpretation of the law, many employers might opt to remain quiet when unionization questions arise to stave off any potential legal consequences. There have long been concerns about the chilling effects of informal government coercion — known as “jawboning” — and this scenario would seem to illustrate that harm. Whether this kind of coercion runs afoul of the First Amendment remains unclear. The Liberty Justice Center (LJC), a public-interest law firm, aims to test the question.
Last month, LJC filed a lawsuit in the U.S. District Court for the Western District of Michigan contesting Abruzzo’s infringement on an employer’s right to free speech. The case was submitted on behalf of Associated Builders and Contractors of Michigan (ABC), a statewide trade association representing businesses in the construction sector, currently led by Jimmy Greene. LJC argues that Abruzzo’s actions are unconstitutional and misguided because they ignore employers’ legitimate interest in discussing unions with their employees. Unionization can significantly impact the workplace, in terms of working conditions and wages, and LJC’s position is that employers should be able to discuss with their employees, in an open and transparent manner, the merits and demerits of inviting a union into the workplace.
LJC also argues that the text of the NLRA does not support Abruzzo’s edict. The NLRA prohibits employers from engaging in unfair labor practices, including intimidating employees from exercising their rights to organize and collective bargaining. However, it does not specifically prohibit employers from discussing unions with their employees. The NLRA grants employers the right to express their opinions about unions as long as they do not attempt to coerce their employees. Moreover, the Taft–Hartley Act of 1947 explicitly prohibits the NLRB from treating employers’ opinions on unionization as “evidence of an unfair labor practice.”
In an interview with National Review, Buck Dougherty, a senior attorney at LJC, claimed that what Abruzzo is doing is unlawful. “She can only investigate an unfair labor practice once a charge is filed [with the NLRB]. What she is attempting to do is trying to incentivize unions to file charges by issuing these public memoranda so she can then take this case to the board and get her legal theory enshrined into law.”
When asked whether Abruzzo is acting within her prosecutorial discretion as general counsel by issuing these memoranda, Dougherty asserted, “That is not what the NLRB general counsel is supposed to do. She is supposed to prosecute unfair labor practices based on existing law. What she is doing with these public memoranda is threatening employers, and it has the effect of enacting a policy. She’s jawboning in an unconstitutional attempt to censor speech.” Dougherty also rejects the notion that Abruzzo’s memoranda are in service of the existing legal protection of employees. “There’s already plenty of law to protect employees if their bosses threaten them at required meetings where employers discuss their thoughts on unionization.”
NLRB declined a request to comment on the matter. Instead, it referenced a Twitter thread by Abruzzo’s office about a recent memo regarding Abruzzo’s attempt to deem “captive audience“ meetings — in which employers address their employees and discuss unionization — unlawful. “The National Labor Relations Act gives employees the freedom to receive aid, advice, & information from others about exercising their [labor] rights, and therefore must also give employees the right to refrain from doing so,” Abruzzo’s office explained in the thread.
Abruzzo certainly seems to be overstepping the normal NLRB rulemaking process by issuing such memoranda. Her bid to outlaw employer-led meetings on the consequences of unionization should be seen as a constitutional affront. Whether union representation suits them is something employees can best determine when they’re fully informed, which includes hearing the views of their employers.
Abruzzo’s rulemaking on captive-audience meetings encapsulates her hostility to the Constitution and patronizing view toward employees. Hopefully, the courts will constrain her before she trounces the First Amendment in the workplace.