Top NLRB Lawyer’s Removal Obstructs Industry Group’s Appeal

The Trump administration’s recent removal of NLRB General Counsel Jennifer Abruzzo presented an obstacle for a construction industry group’s First Amendment challenge to her memo arguing mandatory anti-union “captive audience meetings” are illegal.

One US Court of Appeals for the Sixth Circuit judge repeatedly expressed his concern during oral argument Thursday that a ruling on whether the Associated Builders and Contractors of Michigan’s speech was chilled by Abruzzo’s memo would amount to a prohibited advisory opinion.

Judge Richard Griffin, a George W. Bush appointee, said his worries stemmed from Abruzzo’s exit, as well as the fact that the National Labor Relations Board ruled in November 2024 that captive audience meetings violate federal labor law. Federal courts can only interpret the law when resolving actual disputes, which stems from the US Constitution’s “case or controversy” requirement for what matters they can hear.

“I can’t even think of something that’s more advisory than this because it doesn’t seem that there’s an active case or controversy at the moment, since this is all hypothetical,” he said. “They cannot be chilled at this point because the counsel is not even there, and these things have already happened.”

The argument shows how the pace of federal court litigation can lag behind other events, from political machinations over NLRB personnel to the development of board law.

ABC of Michigan sued Abruzzo in March 2023 over her April 2022 memo saying she viewed captive audience meetings as illegal and would seek to overturn NLRB precedent that allow them. The group appealed to the Sixth Circuit after its lawsuit was dismissed on standing grounds in July 2023.

The group’s attorney, Buck Dougherty of the conservative advocacy group Liberty Justice Center, said the case is still alive because Abruzzo’s memo remains posted to the board’s website.

NLRB lawyer Tyler Wiese said the agency is continuing to pursue the case to defend the principle that general counsels can publicly post memos that communicate their views on the law.

Judge David McKeague, a George W. Bush appointee, said that the “other side of the same coin” of rejecting Abruzzo’s authority to publish her captive audience meeting memo would deny the next Republican general counsel the ability to issue a memo searching for vehicles to change the law back to allowing such meetings.

Judge Joan Larsen, a Trump appointee, raised the possibility of the next GC changing approaches to captive audience meetings. Judge Griffin then predicted President Donald Trump will appoint a new GC who will seek to reverse that precedent, saying that’s “just a matter of time.”

“We actually are a busy court up here and we have a lot of things going on,” he said. “Spending our time on a case that doesn’t make any difference—which to me it doesn’t make any difference here—I don’t particularly like.”

The case is ABC of Michigan v. Abruzzo, 6th Cir., No. 23-01803, oral argument held 1/30/25.