As this blog has noted, last year a regional director for the National Labor Relations Board (NLRB) filed a complaint against Amazon alleging several violations of labor law, including an accusation that Amazon CEO Andy Jassy was guilty of making “anti-union” comments. In an opinion perhaps as unsurprising as it is wrong, an NLRB administrative law judge (ALJ) ruled this week that the comments violated the National Labor Relations Act (NLRA).
The ALJ’s decision focused on several remarks Jassy made to the media regarding the impact of unionization. Among those remarks were fairly straightforward observations about the downsides of having a union in the workplace. Namely, the judge found that Jassy’s predictions that “if the employees unionized they would be less empowered” and “would find it harder to get things done quickly” violated the NLRA “because they went beyond merely commenting on the employee-employer relationship….”
In what might be best described as funhouse mirror logic, the ALJ said that “Jassy’s predictions amounted to unprotected threats.” Webster’s defines a “prediction” as “to state what one believes will happen.” In other words, Jassy’s predictions amounted to honest statements of belief, not a threat.
The ALJ also held that Jassy’s comment that “employees would be better off without a union” was unlawful because it was “accompanied by his coercive predictions about the effects of unionization.” He concluded that “employees could have reasonably understood Jassy to be saying that without a union, they would be more empowered and could achieve improvements at work faster and with less bureaucracy—two assertions unsupported by objective fact—and thus be better off.” In other words, because Jassy couldn’t prove his predictions (which is why they are called “predictions”) saying employees would be better off without a union was unlawful.
The problem with the ALJ’s mind-bendingly distorted reasoning is type of speech Jassy used is specifically protected by the NLRA, which states: “The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.” And Jassy’s statements did not include threats of reprisal or force or promise of benefit. Moreover, try as the NLRB might to make their legal gymnastics seem legitimate, there’s also the matter of the First Amendment.
What’s really going on here is that the NLRB’s General Counsel and the ALJ simply don’t like that Amazon’s CEO offered his opinion about unionizing, which is his right whether they like it or not.
About the authors
Sean P. Redmond
Sean P. Redmond is Vice President, Labor Policy at the U.S. Chamber of Commerce.
