Earlier this week, National Labor Relations Board Administrative Law Judge Brian Gee found that Amazon CEO Andy Jassy violated the National Labor Relations Act by discussing his opinion of the ongoing union effort to organize Amazon facilities. The decision is contrary to decades of precedent regarding employer speech and continues the NLRB’s ongoing, politically driven prosecution of one particular employer.
Judge Gee said Jassy violated labor laws by suggesting employees would be less empowered or “better off” without a union. Gee claims that the comments “went beyond merely commenting on the employee-employer relationship.”
The statements by Jassy were in fact protected by the First Amendment of the Constitution. Americans do not lose their First Amendment rights when they become CEOs of a company disfavored by NLRB bureaucrats.
Moreover, Jassy’s comments were objectively neutral under long-standing NLRA precedent. The NLRA specifically states that “the expressing of any views, argument, or opinion” about unionization shall not constitute an unfair labor practice so long as it “contains no threat of reprisal or force or promise of benefit.”
Additionally, the Board has routinely upheld the right of employers to express their views about unionization, and federal courts have consistently agreed with that interpretation of the NLRA. Since 1941, the Supreme Court has repeatedly held that an employer may express “its view on labor policies or problems.” As recently as 2008, the Court made clear that Congress intended “to encourage free debate on issues dividing labor and management,” noting that the NLRA’s protections of employers’ right to express their views “merely implements the First Amendment.”
Reasonable people may disagree about the line between permissible and impermissible speech under the NLRA. However, if Judge Gee’s decision is left to stand, the effect would be to erase this line entirely. Employers would rightly wonder whether they can speak about unionization at all, despite their legally protected right to do so.
NRF will continue to defend employers’ right to speak on matters of unionization.
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