Senior Vice President, Employment Policy Division, U.S. Chamber of Commerce
October 28, 2022
On October 26, the National Labor Relations Board (NLRB) filed a complaint against the CEO of Amazon. In interviews earlier this year, Andy Jassy suggested that workers should have “direct connections with their managers,” instead of through an intermediary like a union, and that workers might be better off “without a union.”
However, these remarks are hardly controversial.
In fact, this type of speech is specifically protected by Section 8(c) of the National Labor Relations Act (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.” Not to be forgotten, there’s also free speech protections guaranteed by the First Amendment.
It’s hardly surprising to see the agency file a charge here. There has been a concerted attack on employer free speech underway at the NLRB, and the October 26 charges are just the latest salvo.
Consider an April memo issued by the NLRB’s General Counsel (GC) relating to meetings held by businesses to share their views on unions. In it, the GC argues that such meetings are “inherently” coercive. In other words, holding a meeting, during work hours, while workers are being paid, just as business do on many occasions to discuss any number of issues, somehow becomes threatening if information about unions is shared.
Fortunately, there’s one noteworthy entity that has opined against the General Counsel’s point of view and upheld free speech rights — the Supreme Court.
In a 2008 decision, the Supreme Court struck down a California law that attempted to ban employee meetings held to discuss union issues. The California statute was found unlawful because it was preempted by the aforementioned Section 8(c) of the NLRA. The Justices stated that California’s claim that employee meetings were inherently coercive was at odds with the speech protections enshrined in the 1947 Taft-Hartley Act, which created Section 8(c). An overwhelming majority of Congress passed the Taft-Hartley Act to address flaws in the original Wagner Act (also known as the NRLA). Specifically, the Court stated: “California’s policy judgment that partisan employer speech necessarily ‘interfere[s] with an employee’s choice about whether to join or to be represented by a labor union,’ is the same policy judgment that the NLRB advanced under the Wagner Act, and that Congress renounced in the Taft-Hartley Act.”
Put more simply, employers, even CEOs, have free speech rights and can express opinions about unions to their workers. Ultimately, the October 26 charges will be found to be without merit, but not before a lot of needless bureaucratic wrangling. If there’s anyone who deserves a charge of acting in a coercive manner here, it’s the NLRB itself.
About the authors
Spencer oversees the Chamber’s work on immigration, retirement security, traditional labor relations, human trafficking, wage hour and worker safety issues, EEOC matters, and state labor and employment law.