A National Labor Relations Board administrative law judge in San Francisco recently ruled that Amazon CEO Andy Jassy violated the National Labor Relations Act when he commented on labor unions through several media outlets. As a result of Mr. Jassy’s violations, the judge entered an order requiring Amazon to post a nationwide notice stating that Amazon was in violation of the Act. The Amazon.com Services LLC decision involved the historical distinction between company management stating opinions as related to union activity, which is legal under the Act, and management making threats about such activity, which is illegal under the Act.

Statements Made in the Press

Mr. Jassy basically made three comments. First, he stated that unionization would make it more difficult for employees to have direct relationships with management. Second, he stated that unionization would make the workplace more bureaucratic and much slower in terms of being able to get things done. Finally, he stated that he believed that Amazon’s employees would be better off without a union. So, what is an opinion, and what is a threat?

Legal Analysis

The NLRB administrative law judge analyzed these statements to determine whether they were unlawful under the National Labor Relations Act. The judge noted that comments by management that merely state opinions normally constitute free speech and are legal under the Act. However, management comments that are threatening do not constitute free speech and are illegal under the Act. In this case, the first comment – that unionization would make it more difficult for employees to have direct relationships with management – was determined to be a lawful opinion. However, the second statement – that the workplace would become more bureaucratic and much slower – was not protected free speech and violated the Act. Maybe it is not particularly clear why “difficult to have relationships with management” is so different from “bureaucratic and slow” that one statement is legal and the other is not. The Amazon judge did see a difference and held that the “bureaucratic and slow” comment amounted to a threat.

That brings us to the third comment – that Amazon employees would be better off without a union. Sounds sort of like an opinion. But, because the second statement constituted a threat, the third comment, although an opinion, also became illegal as well because it had been accompanied by a threat. In other words, the comment no longer was an opinion, but it became a threating opinion. Thus, it became an illegal statement (according to the judge).

Takeaways

Although this Amazon decision is not particularly clear, what is clear is that the NLRB never has been so aggressive in protecting union activity. Although statements of opinion by management historically have been legal under the Act, the Board is doing everything it can to narrow what is an opinion. Stating that the company would be better off without a union now can be a threat. Especially if you also say that unions make the workplace bureaucratic and slow. So, be careful. When union activity increases in the workplace, be very deliberate and cautious about what management is allowed to say. At least for now.