Today, House Education and Labor Committee Republican Leader Virginia Foxx (R-NC); Senate Health, Education, Labor and Pensions Committee Republican Leader Richard Burr (R-NC); Health, Employment, Labor, and Pensions Subcommittee Republican Leader Rick Allen (R-GA); and Employment and Workplace Safety Subcommittee Republican Leader Mike Braun (R-IN) sent a letter to National Labor Relations Board (NLRB or Board) General Counsel Jennifer Abruzzo regarding guidance that flies in the face of decades of precedent and threatens employers’ First Amendment rights.
The Members write: “The ability of an employer to communicate its views on unionization via mandatory meetings is a long-standing right that has been upheld by the Board for decades and is embodied within the statutory language of the National Labor Relations Act (NLRA).”
The Members also write: “In previous correspondence, Senator Burr impressed upon you the impropriety of using memoranda to impose policy preferences beyond the Board’s statutory authority. Senator Burr cautioned you that replacing decades of case law and legislative text with one’s own personal views and preferences undermines the Board’s reputation, risks the prospect of frivolous litigation, and distracts the Board from its fundamental mission.”
The Members conclude:“It is a violation of separation of powers constitutional principles for any Senate-confirmed executive branch official to implement policy Congress has refused to enact or to ignore existing law simply based on policy preferences. Congress, through carefully crafted legislation, has granted the Board sufficient tools to preserve an employee’s right of free association. It is not for the General Counsel to expand or limit its authority as the current occupant personally sees fit.”
Background: On April 7, 2022, the NLRB General Counsel issued Memorandum 22-04, “The Right to Refrain from Captive Audience and other Mandatory Meetings.” The memorandum discards decades of case law that supports an employer’s First Amendment right to educate its employees about unionization. This right was solidified by the NLRB itself following passage of the Taft-Hartley Act of 1947. The Members request information from General Counsel Abruzzo regarding the reasoning behind Memorandum 22-04 and the process by which it was drafted.