A U.S. appeals court panel on Tuesday seemed unlikely to revive claims that National Labor Relations Board General Counsel Jennifer Abruzzo violated employers' free-speech rights by threatening legal action against businesses that require workers to attend meetings discouraging unionizing.
A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans during oral arguments suggested that a group of staffing firms lacked legal standing to sue over a 2022 memo by Abruzzo arguing that so-called "captive audience meetings" are illegal.
The five companies are appealing a Texas judge's decision that said they did not have standing and that courts lack jurisdiction to review prosecutorial actions by the NLRB general counsel.
Employers commonly hold mandatory meetings as a response to workers' unionization efforts. They have been legal under NLRB precedent for decades. At least seven Democratic-led states including New York, New Jersey, Minnesota, and Oregon have banned captive audience meetings, and some of those state laws are being challenged in court.
Abruzzo, an appointee of Democratic President Joe Biden, said in her memo that forcing workers to attend those meetings violates their right to freely decide whether to join unions. Her office has since issued dozens of complaints involving captive audience meetings, and the five-member board has yet to address the issue.
On Tuesday, 5th Circuit Judge Catharina Haynes suggested that because the staffing firms that sued Abruzzo are not the subject of any active complaints, their claims were premature.
"None of us want someone to come after us but that doesn't mean we can file a lawsuit," said Haynes, an appointee of Republican former President George W. Bush.
And even if one of the companies does face a complaint for holding captive audience meetings, there is no guarantee that the NLRB will agree with arguments from Abruzzo, whose office acts as a prosecutor, Haynes said.
"Isn't that the ultimate concern of your clients, that they don't want to be convicted? [Abruzzo] can't convict them," the judge said to Matthew Miller, a lawyer for the plaintiffs.
Miller, of the conservative Texas Public Policy Foundation, told the panel that Abruzzo intended to discourage employers from exercising their free-speech rights by issuing the memo, noting that her office issued a press release and posted about it on social media.
"She was trying to bully companies into changing their behavior," Miller said.
But Circuit Judge Patrick Higginbotham told Miller that it was just as likely that Abruzzo felt obligated to announce that her office was urging the board to make a major change in the law.
"On the one hand it's a threat," said Higginbotham, an appointee of Republican former President Ronald Reagan. "On the other hand it can be seen as 'heads up guys.'"
NLRB lawyer Tyler Wiese said Abruzzo's memo does not violate employers' free-speech rights because it does not actually ban captive audience meetings — something only the board can do.
The 5th Circuit panel includes Circuit Judge Carl Stewart, an appointee of Democratic former President Bill Clinton, who did not speak during the arguments.
The case is Burnett Specialists v. Abruzzo, 5th U.S. Circuit Court of Appeals, No. 23-40629.
For the plaintiffs: Matthew Miller of the Texas Public Policy Foundation
For the NLRB: Tyler Wiese of the NLRB; and Daniel Aguilar of the U.S. Department of Justice
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