After recent backlash from a group of employers, National Labor Relations Board General Counsel Jennifer Abruzzo has doubled down on a memo she issued last year. The directive puts the kibosh on so-called captive audience meetings where employers might give speeches that discourage employees from joining unions or that are in some way anti-union.

Abruzzo overstepped her authority in last year’s captive audience memo, according to Associated Builders and Contractors of Michigan, which filed a lawsuit about the matter earlier this month. ABC claimed that the memo violates employer free speech rights, as captive audience meetings have a history dating back to 1948. Those meetings are not necessarily related to organized labor. Rather, they refer to any mandatory meetings conducted by a company. Employees are paid for their time attending the meeting and are required to attend or face discipline, ABC claimed.

“Since being appointed General Counsel of the National Labor Relations Board in 2021, Jennifer 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,” ABC said, according to court records.

Further, the organization said, Abruzzo is attempting to “cajole unions to file unfair labor practice charges against employers, because she “is still lacking cases she can use to challenge certain precedents as part of her campaign to shift federal labor law to benefit workers and unions.”

March 20, just days after the March 16 filing, Abruzzo issued a follow-up memo, making it clear that she is not backing away from her position. 

“The March 20 memo appears to be an attempt at both a victory lap and to justify the prior memos she issued, laying the foundation for changes she has been seeking and, seemingly, her defense against the ABC lawsuit,” attorney Alexander A. Wheatley, a partner at Fisher Phillips, wrote in an article.   

Although memos from the general counsel’s office “don’t represent the official legal position of the entire agency, they do represent the policy and guidance for all regional offices investigating and prosecuting charges against employers,” Wheatley noted.

Until the court decides the merits of the ABC lawsuit, captive audience meetings “remain both legal and risky in light of the general counsel’s memo, and employers remain in limbo,” he said.

In the meantime, employers should do their best to make employees aware that attendance is voluntary at employee meetings or discussions at which union representation is discussed, Wheatley added.