The Center Square

Grand Rapid Hearing Focuses on Employer Free Speech

July 20, 2023

(The Center Square)–Judge Robert Jonker said he will issue a written opinion “soon” hinging on employer’s free speech rights.

The Center Square reported that the Chicago-based nonprofit Liberty Justice Center filed a lawsuit in federal court on March 16, 2023, on behalf of ABC Michigan, a statewide trade association that represents the construction industry. The judge will rule based on oral arguments presented before the U.S. Western District Court of Michigan in Grand Rapids on Wednesday afternoon.

The lawsuit says that Jennifer Abruzzo, National Labor Relations Board general counsel, and prosecutor, would abrogate employer First Amendment rights by using her authority to change longstanding precedent to favor unions.

The NLRB declined to comment.

The lawsuit argues Abruzzo’s new policy violates the NLRA and the First Amendment which prohibits government officials from making threats intended as a censorship scheme to quell speech.

After Abruzzo was appointed by President Biden on July 21, 2021, she issued a public memorandum urging the Board to correct the 67-year-old Babcock precedent, which allows business owners to speak to their employees about unionization.

LJC senior counsel Buck Dougherty told The Center Square the NLRB’s normal enforcement is fine.

However, ABC argues Abruzzo is “acting outside the formal NLRB enforcement process and is using these public memos to illegally jawbone, to try to coerce employers to give up their free speech,” Dougherty said in a phone interview.

He says sending internal memos is fine, but says Abruzzo is trying to “game the system” by sending these memos to her colleagues and regional directors.

As a prosecutor and general counsel, Abruzzo is authorized to impartially investigate and prosecute once a charge is filed, but she can’t file charges alleging an unfair labor practice against an employer or a union.

“She’s trying to game the system to coerce employers not to act because they now don’t know what the law is, because someone may file a charge if they hold these meetings with their employers, and she’s using the memos to elicit people to file charges so she can go test her legal theories,” Dougherty said.

Abruzzo’s office responded, filing a motion to dismiss the case.

The lawsuit says Abruzzo “has embarked on a personal campaign to transform federal labor law under the National Labor Relations Act to favor unions, and to disfavor employers.”

A Bloomberg article says Abruzzo targeted 53 issues for changes in precedent in a memorandum after winning Senate confirmation.

The lawsuit claims that Abruzzo’s memo is an attempt to coerce employers into avoiding conversations on union representation with their employees by threatening legal action if these discussions take place during mandatory meetings.