Labor & Employment Law Daily Wrap Up, PROCEDURE—6th Cir.: Trade association denied challenge to NLRB GC’s Memo on captive-audience meetings, (Feb 14, 2025)

By Ronald Miller, J.D.

Federal courts do not “operate as an open forum for citizens ‘to press general complaints about the way in which government goes about its business.’”

The Sixth Circuit, in an unpublished decision, affirmed a district court’s ruling that an employer trade association lacked standing to challenge a Memorandum issued by former NLRB General Counsel Jennifer Abruzzo regarding captive audience meetings. According to the association, the Memo violated its members’ First Amendment rights by compelling, regulating, and restraining their speech. While under Sixth Circuit precedent, a threat of enforcement implicating free speech is a sufficiently “imminent” injury when the plaintiff intends to engage in expression that is arguably protected by the Free Speech Clause; here, the association did not sufficiently allege that its members intended to engage in expression arguably protected by the First Amendment. Accordingly, the appeals court concluded that the association lacked standing because its members did not suffer a concrete injury (Associated Builders and Contractors of Michigan v. Cowen, No. 23-1803 (6th Cir. Feb. 13, 2025, unpublished)).

Throughout her tenure as NLRB General Counsel, Jennifer Abruzzo issued “policy guidance” memoranda. She used these memoranda to establish policy initiatives and provide her office’s interpretation of the NLRA. The memoranda are not legally binding, and they are not final orders of the Board.

Captive-audience meetings. In April 2022, Abruzzo issued Memorandum GC 22-04, a memo regarding captive-audience meetings. She also published it on the NLRB website. The Memo detailed her view that captive-audience meetings—mandatory meetings in which employers urge employees to reject union representation—violate the NLRA. The Memo argued that captive-audience meetings “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to” their employer’s speech. In Abruzzo’s view, employer-led meetings about union activity must be “truly voluntary.”

But Abruzzo recognized that she could not unilaterally prohibit captive-audience meetings, as they were permitted under the Board’s then-controlling precedent. So Abruzzo wrote that she would “urge” the Board to reconsider Babcock & Wilcox Co., 77 N.L.R.B. 577 (1948).

Threat of prosecution. An employer trade association took exception to the Memo, asserting that it amounted to unconstitutional threat of prosecution. Specifically, the employer group alleged that publishing the Memo was an ultra vires act in violation of the First Amendment.

“Intimidating.” In March 2023, Associated Builders and Contractors of Michigan filed a complaint against Abruzzo in her official capacity as General Counsel. The plaintiff is a “statewide trade association representing the commercial and industrial construction industries.” The association’s members purportedly interpreted the Memo as “a threat to intimidate employers” by (1) intimating that employers would be prosecuted if they held captive-audience meetings, (2) “declaring open season” for unions to bring charges against employers so that Abruzzo could persuade the Board to overturn Babcock, and (3) coercing employers to “adopt” Abruzzo’s preferred approach to meetings about unionization.

Motion to dismiss. In moving to dismiss the complaint, Abruzzo first claimed that the NLRA precludes district courts from enjoining NLRB procedures and reviewing the General Counsel’s prosecutorial discretion. Second, Abruzzo noted that there was no judiciable controversy because the association lacked standing (i.e., its members suffered no concrete injury) and the case was not ripe for review (i.e., the Memo was neither binding nor final). Third, she argued that there was no constitutional violation because the First Amendment “grants the right to speak, not to force others to listen.”

The district court dismissed the association’s complaint. First, the court concluded that it lacked subject-matter jurisdiction over the association’s claims because the Memo was not an “ultra vires act,” but rather a valid and unreviewable exercise of the General Counsel’s statutory authority. Second, the court determined that the association did not have standing because its members did not suffer a concrete injury, and even if they did, the requested relief would not redress that injury. The association filed a timely appeal.

Standing. To establish standing, plaintiffs ordinarily must show that (1) they suffered a concrete and particularized “injury in fact” that is actual or imminent; (2) their injury is “fairly traceable” to the challenged action by the defendant; and (3) their injury will likely be redressed by a favorable decision.

Associational standing. Here, the association’s claims are based on “associational standing,” that is, it was suing on behalf of its members. To establish associational standing, the association must show that (1) “its members would otherwise have standing to sue in their own right;” (2) “the interests it seeks to protect are germane to the organization’s purpose;” and (3) “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” The parties focused on the first element: whether at least one of association’s members would have standing on its own.

Threat of enforcement. The association alleged that the Memo constitutes a threat of prosecution and chills its members’ free speech rights. This raised the “recurring issue” of whether the threatened enforcement of a law satisfies the injury in fact requirement. Under Sixth Circuit precedent, a threat of enforcement implicating free speech—i.e., a First Amendment chill—is a sufficiently “imminent” injury when (1) the plaintiff intends to engage in expression that is arguably protected by the Free Speech Clause, (2) the expression is arguably proscribed by the law in question, and (3) the plaintiff faces a “credible threat of enforcement” for engaging in that expression.

However, here, the appeals court determined that the association did not sufficiently allege that its members intended to engage in expression arguably protected by the First Amendment. Specifically, the complaint failed to establish that any of the association’s members had a concrete plan to hold a captive-audience meeting.

Injury in fact. The association’s complaint made only a passing reference to its members’ future intent. It alleged that “[b]ut for Abruzzo’s threat of prosecution... ABC Michigan employer members would engage in lawful free speech and express to their employees their views, argument, or opinion on unionization during mandatory work meetings.” But the complaint did not state that its members held captive-audience meetings in the past. Thus, the association’s conclusory statement failed to sufficiently allege that any of the association’s members had a specific plan to engage in conduct that implicates the First Amendment.

Because the association did not satisfy the injury in fact requirement for constitutional standing, the district court properly dismissed the complaint for lack of standing.

The case is No. 23-1803.

Judge: McKeague, D.

Attorneys: Buck Dougherty (Liberty Justice Center) for Associated Builders and Contractors of Michigan. Michael Samuel Dale, National Labor Relations Board, for William B. Cowen.

Companies: Associated Builders and Contractors of Michigan

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