Texans sue NLRB over alleged constitutional violations

(The Center Square) – The Texas Public Policy Foundation’s Center for the American Future sued the National Labor Relations Board, an independent agency tasked with enforcing federal labor law, alleging new guidance it’s issued violates the First Amendment.

The lawsuit was filed Monday in U.S. District Court for the Eastern District of Texas Sherman Division and lists the NLRB and its general counsel, Jennifer Abruzzo, as defendants.

The center sued on behalf of five Texas staffing agencies whose clients reside in multiple Texas counties.

At issue is an April 7 Memorandum GC 22-04, “The Right to Refrain from Captive Audience and other Mandatory Meetings,” Abruzzo sent to all regional directors, officers in charge and resident officers in the NLRB.

In it, Abruzzo proposed changing a decades-long practice of employers holding mandatory employee meetings during paid time to discuss statutory labor rights. NLRB case precedent has found that such mandatory meetings are lawful; Abruzzo argues these rulings were decided inaccurately.

She argues that requiring employees to attend mandatory meetings under threat of discipline unlawfully “chills” employees’ rights protected by the National Labor Relations Act.

She argues the meetings “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.” NLRB case precedent, “which has tolerated such meetings,” she adds, is “at odds with fundamental labor-law principles, our statutory language, and our congressional mandate.”

As a result, she urged the board to reconsider NRLB case precedent and to determine that the mandatory meetings are unlawful.

Her guidance isn’t legally binding and would need to be approved by the NRLB’s five-member board.

Abruzzo also maintains that protecting “employees’ right to refrain [from participating in these meetings] will not impair employers’ statutory or constitutional freedom of expression,” pointing to an argument made in a 1945 U.S. Supreme Court ruling.

But the center and plaintiffs disagree, arguing the guidance directly restricts employer speech “on the basis of its content, viewpoint and speaker,” which violates the employers’ right to free speech protected by the First Amendment.

“It’s a basic principle in this country that the government doesn’t get to pick the side of a debate that it likes and silence the opposition,” Chance Weldon, director of litigation for the Center for the American Future, said. “That principle doesn’t change just because the debate occurs on a shop-room floor, rather than in a townhall or on Twitter.”

All Americans, including employers, have free speech rights under the First Amendment, the center’s senior attorney, Matt Miller, adds, including “the right to convey simple, truthful information about unionization to their employees.”

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