Rewriting Labor Law by Executive Fiat

NLRB counsel Jennifer Abruzzo strips companies of free-speech rights in a memo

By Allysia Finley. 

"Progressives are pushing the Biden Administration to enact their agenda by executive fiat, and Jennifer Abruzzo is on the case. The National Labor Relations Board general counsel last week issued a memo that overturns 75 years of legal practice and strips companies of free-speech rights.

The Abruzzo memo rewrites the law on the settled question of captive audience meetings, in which companies are allowed to communicate their opposition to union attempts to organize employees. Congress recognized this First Amendment right in the National Labor Relations Act, writing that the corporate expression “of any views, argument or opinion, or the dissemination thereof . . . shall not constitute or be evidence of an unfair labor practice.”

Since its 1948 Babcock & Wilcoxdecision, the NLRB has consistently upheld a company’s right to require employees on company time to attend such meetings.

But no matter. Ms. Abruzzo’s memo pronounces, 74 years later, that the NLRB “incorrectly” decided Babcock & Wilcox and thatmandatory meetings on company time are “unlawful.” She says such meetings force workers to listen to “employer speech under threat of discipline,” violating their “right to not listen to such speech.”

This is a thumb in the eye of Congress and the Constitution. Companies can clearly require employees to attend meetings—say, to discuss productions goals or workplace morale. Banning any mention of unionization at a meeting, or its impact on company performance, is blatant speech regulation. Congress has been aware of the Babcock & Wilcox decision for decades and has never overruled it.

President Biden’s PRO Act proposes to do so, but he can’t get that through Congress. Ms. Abruzzo is instead trying to impose a ban on such meetings by NLRB order, and she’s not waiting for the Senate-confirmed NLRB board to vote on it. NLRB policy is set when the five-member board rules on a dispute or engages in formal rule-making—a process that provides business an opportunity for comment and legal certainty until new decisions are rendered.

Ms. Abruzzo’s memo, which was sent to NLRB field offices, is a green light to file complaints against lawful business behavior. Even if the board never adopts her position, her threat will chill free speech. The memo “asks employers to decide if they’ll follow existing precedent, conduct captive-audience meetings and risk years of litigation, or give up their free-speech rights,” says Michael Lotito, a labor attorney at Littler Mendelson.

You will not be surprised to learn that, before she joined the NLRB, Ms. Abruzzo worked for the Communications Workers of America. The White House appointed her to the post after it fired Trump general counsel Peter Robb when he had 10 months left on his term.

That dismissal was unprecedented, and now we know why the White House wanted Ms. Abruzzo in the job. She plans to turn the labor board into a spear for unions against employers, and she’ll rewrite the law to do it."