NLRB General Counsel’s ‘Captive Audience’ Memo Passes Legal Test

A memo from the National Labor Relations Board’s legal chief targeting companies’ mandatory anti-union meetings escaped a second industry challenge in federal court.

A federal district court in Texas said Thursday that it lacked jurisdiction to hear challenges to NLRB General Counsel Jennifer Abruzzo’s prosecutorial decisions, including her memo arguing “captive audience meetings” violate federal labor law. A group of staffing firms filed the lawsuit against the memo.

“In fact, Plaintiffs do not even attempt to argue that Abruzzo’s Memorandum is outside of her prosecutorial functions,” Judge Amos Mazzant of the Eastern District of Texas said. “This concession is fatal: prosecutorial functions are simply unreviewable.”

The ruling follows a similar decision this summer from a Michigan federal court tossing a construction industry challenge to Abruzzo’s captive audience memo. The Associated Builders and Contractors of Michigan is appealing that ruling in the US Court of Appeals for the Sixth Circuit.

The staffing firms’ lawyer, Matthew Miller of the Texas Public Policy Foundation, said they will appeal the ruling dismissing their lawsuit.

“We’re looking forward to taking it to the Fifth Circuit,” he said.

The attempts to preemptively derail Abruzzo’s campaign to outlaw captive audience meetings—one of the most potent weapons in employers’ anti-union arsenals—highlights the high stakes involved in that effort.

Abruzzo argues those mandatory meetings are inherently coercive because they threaten workers with discipline or other reprisal if they exercise their right not to listen to employers’ claims about unionization

The staffing firms that sued Abruzzo alleged her memo violates employers’ First Amendment right to present their views on unions.

But their lawsuit failed on multiple jurisdictional grounds, Mazzant, an Obama appointee, ruled Thursday.

Not only are prosecutorial decisions immune to judicial review, the NLRB’s system for reviewing unfair labor practices prevents a district court from hearing the staffing firms’ claims, Mazzant said.

The staffing firms also lack standing to sue because they failed to show they face a substantial threat of future enforcement, the judge said.

The case is Burnett Specialists v. Abruzzo, E.D. Tex., No. 22-00605, 8/31/23.