LJC Files Lawsuit to Protect Employer Free Speech Rights in Michigan

March 16, 2023

Every American has the right to be free from threat of prosecution when they lawfully exercise their free speech rights—but that right is currently under attack due to illegal jawboning by Jennifer Abruzzo, the General Counsel and prosecutor for the National Labor Relations Board, appointed by President Biden.

The First Amendment protects the right of unions, workers, and business owners to discuss the pros and cons of unionizing workers at a business. When a union wants a business’s employees to unionize, it has the right to make its case to them; the employees have the right to discuss it among themselves; and their employer has the right to tell employees why a union might not be beneficial. Each party’s rights to do these things aren’t only protected by the First Amendment—they’ve also been protected for 75 years by the National Labor Relations Act and Board precedent.

However, after Abruzzo took her new job, she inserted herself into an already clear and defined legal discussion by issuing a public memorandum announcing that she would urge the Board to change its longstanding precedent allowing business owners to speak to their employees about unionization. Ultimately, Abruzzo’s memo is an attempt to coerce employers into avoiding conversations on union representation with their employees by threatening legal action if discussions of this nature take place during mandatory meetings. Now, employers must refrain from discussing their opinions on unions with their own employees in these settings if they wish to avoid legal consequences.

“Every single day 88% of Michigan’s builders and contractors go to work employing over 75,000 skilled trades workers and their families. Working in a competitive environment means that we depend on a fair and non-biased National Labor Relations Board,” said Jimmy Greene, CEO and President of ABC Michigan. “To date, ABC Michigan sees little to nothing that would give our members confidence in that expectation.”

Buck Dougherty, Liberty Justice Center Senior Attorney, said, “Courts have made it clear that when a government official’s speech is not an attempt to convince but an attempt to coerce, then that official has crossed the line into threatening behavior. And the Supreme Court held many years ago in its Bantam Books decision that a threat of prosecution designed as a censorship scheme violates the First Amendment.”

The Liberty Justice Center has sued Abruzzo to challenge this violation of employers’ free-speech rights. LJC filed the case on behalf of Associated Builders and Contractors of Michigan, a statewide trade association that represents businesses in the construction industry that believe in fair and open competition, free enterprise, workers’ freedom to choose whether to be part of a union or its training programs, balanced budgets, a fair taxation structure, and reasonable regulation.

The lawsuit, filed in the U.S. District Court for the Western District of Michigan, argues that Abruzzo’s public threat of prosecution violates the First Amendment Free Speech Clause, which prohibits government officials from making threats intended as a censorship scheme to quell speech.

The Liberty Justice Center’s filings in the case are available here.


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