A judge with the National Labor Relations Board (NLRB) last week ruled in favor of a case that has serious implications for free speech by employers when talking about unions, legal experts told the Daily Caller News Foundation.
Judge Brian Gee found that the NLRB was correct in its assertion that certain comments made in interviews in 2022 by Amazon CEO Andy Jassy violated federal labor law amid a national unionization campaign at the company. Jassy’s comments were about how union members would be “better off” without a union because there would be less red tape between employees and management, and came as the Biden administration has pushed to promote unionization. However, the judge’s decision could significantly chill free speech. (RELATED: Biden’s Signature Climate Law Is Falling Short On Its Goal To Boost American Manufacturing)
“The NLRB has a long history of restraining the speech of employers who want to oppose unionization,” Laura Baxter, a labor lawyer at RedBalloon, told the DCNF. “It may pay lip service to employer free speech, but in reality, any effective statement of disapproval by the employer is likely to be deemed an unlawful ‘threat.’ This decision is extreme, even within that context. I presume the Amazon CEO was well-advised in advance regarding what he should and should not say. I also presume Amazon will appeal.”
Jassy allegedly violated the National Labor Relations Act, specifically the portion making it an “unfair labor practice” if employers seek to interfere, restrain or coerce workers from exercising their right to organize. The NLRB lists common violations of this rule as threatening to take away benefits, threatening to worsen working conditions and promising benefits if they reject unionization.
The NLRB suit points to three separate interviews done by Jassy in 2022. The first took place on April 14 on CNBC’s Squawk Box, where the CEO emphasized that it was the choice of the employees whether to unionize, but that unionizing would ultimately bog down the communication process by requiring a labor representative.
“You know, first of all, of course, it’s…employees’ choice whether or not they want to join a union. We happen to think they’re better off not doing so for a couple of reasons at least,” Jassy said in the interview, according to the ruling. “You know, first, at a place like Amazon that empowers employees, if they see something they can do better for customers or for themselves, they can go meet in a room, decide how [to] change it and change it. That type of empowerment doesn’t happen when you have unions. It’s much more bureaucratic, it’s much slower. I also think people are better off having direct connections with their managers.”
The second interview mentioned in the suit was on June 8, 2022, when Jassy spoke at an event called the Bloomberg Technology Summit: Looking Forward, and made very similar statements to those made on April 14. The third interview took place on November 30 of that year at The New York Times DealBook Summit, also making similar points.
The judge found that the remarks could be considered a threat by a reasonable employee even if they were not explicitly so. While employers are allowed to inform workers of their position during a union campaign, that speech is only subject to protection if it is objective fact, and if it is not fact, then it can constitute a “threat of retaliation based on misrepresentation and coercion,” according to the ruling.
The suit declared that it is not an objective fact that workers would be more empowered and could achieve more through less bureaucracy without a union.
“We strongly disagree that any part of these comments were inappropriate and intend to appeal,” Mary Kate Paradis, a spokesperson for Amazon, told the DCNF. “The decision reflects poorly on the state of free speech rights today, and we remain optimistic that we will be able to continue to engage in a reasonable discussion on these issues where all perspectives have an opportunity to be heard.”
The judge ordered that to remedy the alleged violations, Amazon must stop making statements saying employees would be less empowered with a union and that things would get done quicker. Amazon also has to post and distribute to all U.S. employees and locations a notice informing them of their right to unionize and telling workers that they will not be threatened by criticisms of unions slowing down business.
🧵: In the first six months of Fiscal Year 2024, the NLRB has seen a 35% increase in union election petitions.
The agency is meeting this challenge, providing timely and fair elections, thanks to two important changes to the Board’s election processes. pic.twitter.com/KZ7mb7ZcSD
— NLRB (@NLRB) April 15, 2024
“The administrative law judge here is not just restraining speech; he is redefining objective reality,” Baxter told the DCNF. “Jassy stated a true fact, that unions are bureaucratic and make it harder to get things done in the workplace. This has certainly been my experience after two decades as a labor lawyer. But the administrative law judge states that, because Jassy provided ‘no objective basis’ for his assertion, the statement constituted an unlawful ‘threat.’”
Amazon workers in many different plants across the country have pushed to unionize, with calls intensifying in 2021 at a plant in Bessemer, Alabama, that resulted in a heated anti-union campaign by Amazon. Workers at an Amazon facility in Staten Island successfully unionized in April 2022, prompting legal challenges from the company.
“A particularly concerning component of the NLRB’s efforts has been its disregard for the law and even the constitution, as evidenced by its high-profile rulings against prominent CEOs who dared to offer measured answers to questions from the media about how unionization might affect their company or employees,” Maxford Nelsen, director of research and government affairs at the Freedom Foundation, told the DCNF. “In this case, Jassy’s comments — which weren’t even directed to employees — neither attempted to bribe employees out of unionization with the ‘promise of benefit’ or coerce them from choosing unionization with ‘threats of reprisal or force’ — the only kinds of speech the National Labor Relations Act statutorily prohibits.”
Former Starbucks CEO Howard Shultz was the subject of a similar suit, which found last October that he had violated federal labor law by telling a barista at a California location that she should “go work for another company” when asked to justify his stance against unionization. The judge ruled that the comment constituted an illegal threat.
The NLRB also ordered Tesla in 2021 to delete CEO Elon Musk’s comments he made on Twitter in 2018 that pointed out that the workers would have to pay union dues and give up stock options if they were to unionize while claiming workers would gain “nothing” in return, according to Reuters.
The NLRB under the Biden administration has empowered workers looking to unionize, particularly through a decision in a case involving Cemex Construction Materials Pacific, LLC, which makes it so that employers have to either comply with union demands to hold a vote when the majority of workers request recognition or submit to union requests. If the employer chooses to hold a vote and the NLRB finds that unfair labor practices have occurred, the union’s request will be automatically granted.
“Presumably, even unions don’t dispute that unionization changes workplace dynamics, but for CEOs like Amazon’s Jassy to publicly acknowledge that such changes may not be universally positive is apparently too much for the NLRB to tolerate,” Nelsen told the DCNF. “And for federal regulators at any agency, including the NLRB, to take upon themselves the mantle of policing speech by private individuals commenting in the press on matters of public interest and concern raises significant free speech and First Amendment concerns.”
The NLRB did not respond to a request to comment from the DCNF.
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