NLRB Judge Finds Amazon CEO’s Comments About Unions Unlawful

A San Francisco administrative law judge (ALJ) for the National Labor Relations Board (NLRB) recently found Amazon CEO Andy Jassy’s comments about unions to be unlawful. Whether that ruling will be upheld on appeal is questionable. Employers should be free to articulate and lead their company’s workplace culture.

The ruling is an “extreme infringement” not just on the First Amendment, but also on Section 8(c) of the National Labor Relations Act (NLRA), which gives management representatives broad leeway to state opinions about how they prefer to work with employees, said Phil Wilson, president and attorney with LRI Consulting Services in Broken Arrow, Okla. That section provides that expressing any views, argument, or opinion should not constitute an unfair labor practice, if such expression contains no threat of reprisal or force and no promise of benefit.

No reasonable person could view Jassy’s comments about unionization as threatening or coercive, Wilson said, calling Jassy’s remarks “well within the bounds found to be lawful” by courts. He predicted that even if the NLRB affirms the board ALJ’s decision, which Amazon has announced it will appeal, an appeals court later will rule in Amazon’s favor.

What Did Amazon’s CEO Say?

In interviews with CNBC’s Squawk Box, Bloomberg Technology Summit: Looking Forward, and The New York Times DealBook Summit, Jassy made various remarks about unionization efforts that were underway at Amazon.

On SquawkBox, Jassy’s remarks included statements that “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.”

Those reasons included that at Amazon, employees are empowered to make changes to improve service for customers, he said. “That type of empowerment doesn’t happen when you have unions. It’s much more bureaucratic. It’s much slower,” Jassy stated.
He added, “I also think people are better off having direct connections with their managers. You know, you think about work differently [when you’re unionized]. You have relations that are different. [Without union representation,] we get to hear from a lot of people as opposed to it all being filtered through one voice.”

Jassy made similar remarks in the other interviews.

ALJ’s Holding

The ALJ concluded that Jassy lawfully stated that unionization would make it more difficult for employees to have direct relationships with management.

However, it then determined that he unlawfully stated that unionization would make employees less empowered and would make it harder to get things done quickly.

Amazon said these statements were “interwoven with his other statements about the loss of a direct employee-employer relationship and that those combined statements form protected opinions” under the board’s Tri-Cast Inc. ruling in 1985.

In Tri-Cast, the board evaluated language in an employer’s union election day letter to its employees. In that case, the employer wrote: “We have been able to work on an informal and person-to-person basis. If the union comes in this will change. We will have to run things by the book, with a stranger and will not be able to handle personal requests as we have been doing.”

The union lost the election and filed objections. The regional director recommended that the union’s objection be upheld, but the board declined to do so, finding no threat, whether implicit or explicit. Instead, there was simply a statement that “explains to employees that, when they select a union to represent them, the relationship that existed between the employees and the employer will not be as before.”

In the case at hand, the ALJ said that the statements about less empowerment and making it harder to get things done quickly “go well beyond the holding in Tri-Cast.” By exceeding the comments protected by Tri-Cast, Jassy’s predictions “amounted to unprotected threats,” the ALJ determined.

Secondly, the statements unlawfully had no objective basis, the ALJ found.

Decision Criticized

“We strongly disagree that any part of these comments were inappropriate and intend to appeal,” said Mary Kate Paradis, an Amazon spokesperson. “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.”

Wilson said the decision was inconsistent with appeals court case law.  He cited a May 10, 2022, decision by the 3rd U.S. Circuit Court of Appeals in which the operator of The Federalist, an online magazine, tweeted that he’d send his workers “back to the salt mine” if they tried to unionize. Even that “tongue-in-cheek” comment wasn’t ruled an unlawful threat, Wilson said, who added that Jassy’s comments were “way more in bounds.”

Wilson said he finds the ALJ’s ruling “very troubling.” It, and other board action such as the general counsel’s opposition to “captive audience meetings” on unions, show the board wants to silence corporate America unless it voices support for unionization, he said.

The ALJ’s decision is “wrong,” he added, saying employers should exercise their right to free speech. Nothing is to be gained if employees vote about unions without hearing a robust debate, Wilson said, adding that “there’s not just one answer to this question.” He said that it’s “factually correct” that processes are different, slower, and not as empowering with unions.

If workers think they’re going to automatically get raises and benefits and everything will be better if they’re unionized, they’re “in for a rude awakening when bargaining begins,” he said.

If, after a healthy and civil debate, employees decide they want to unionize, that’s fine, Wilson said.

Employers do have limits under the NLRA regarding what they can say about unions. In addition to not being able to engage in threats, employers can’t interrogate, make promises about improvements if a union is kept out, or engage in surveillance over unionization. But managers can share facts and opinions and give specific examples of situations that involve union organizing and contract negotiations.