A confusing National Labor Relations Board (NLRB) ruling in the case Amazon.com Services LLC makes employer communications concerning union activity even more difficult to navigate.  

An Administrative Law Judge (ALJ) in San Franciso recently ruled that opinion statements made by Amazon CEO Andy Jassy (Jassy) violated the National Labor Relations Act (NLRA) because they were deemed threatening in nature. In several nationwide interviews, Jassy offered his opinions on unionization. Specifically, that employees would lose their direct relationship with managers if they elected a union; they would be less empowered and find it harder to get things done as unions are slower and more bureaucratic; and that employees would be better off without a union.  

The ALJ ruled the first statement – the prediction that unionization would change the employer-employee relationship – to be lawfully stated opinion. However, Jassy’s predictions that employees would be less empowered, would find it harder to get things done quickly, and would be better off without a union, were found to violate the NLRA because they went beyond merely commenting on the employee-employer relationship and did not comply with the standards for protected speech established by NLRB precedent.  

The Amazon case took place in the context of a union organization campaign that began in 2021. Under the NLRA, “[t]he 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.”  The standard of review is whether the remark can reasonably be interpreted by an employee as a threat — a supposedly objective standard. However, given the current administration’s pro-union stance and the NLRB’s position of support, the standard has become considerably subjective.  

What Does It All Mean? 

The Amazon decision does nothing to bring clarity to the “opinion” vs. “threat” analysis. It does, however, emphasize the aggressive stance being taken by the NLRB in protecting union activity. Saying that the company would be better off without a union can be perceived as a threat, especially if you also claim that unions cause bureaucratic delays. Therefore, those speaking for management should exercise caution. When union activity rises in the workplace, management must be very careful and deliberate about their statements, at least until a reviewing court rules otherwise.