Michigan builder-contractor group sues National Labor Relations Board counsel over First Amendment

A Michigan trade association is suing the National Labor Relations Board's general counsel over allegedly threatening to violate employer free-speech rights.

The Associated Builders and Contractors of Michigan lawsuit argues NLRB general counsel and prosecutor Jennifer Abruzzo, would abrogate employer First Amendment rights by using her authority to change longstanding precedent to favor unions.

The Chicago-based nonprofit Liberty Justice Center filed the lawsuit Thursday in the U.S. District Court for the Western District of Michigan, on behalf of ABC.

After Abruzzo was appointed by President Biden on July 21, 2021, she issued a public memorandum announcing that she would urge the board to correct its longstanding precedent that allowed business owners to speak to their employees about unionization.

The lawsuit states 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."

Bloomberg News reports Abruzzo targeted 53 issues for changes in precedent in a memorandum after winning Senate confirmation.

The lawsuit says 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.

As general counsel, Abruzzo is authorized to impartially investigate and prosecute once a charge is filed. She’s not authorized to file a charge alleging an unfair labor practice against an employer or a union.

The NLRB declined to comment for this story.

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. So 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," said ABC Michigan CEO and President Jimmy Greene. "Working in a competitive environment means that we depend on a fair and non-biased National Labor Relations Board. To date, ABC Michigan sees little to nothing that would give our members confidence in that expectation."

The First Amendment protects the right of unions, workers, and business owners to discuss the pros and cons of unionizing workers at a business. A union has a right to argue its case for unionizing to a businesses’ employees, 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.

"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," LJC senior attorney Buck Dougherty said in a statement. “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."