Letter to NLRB Inspector General regarding safeguards to protect rights under NLRA

November 4, 2022

Mr. David Berry Inspector General National Labor Relations Board 1015 Half Street, SE Washington, DC 20570

Dear Inspector General Berry:

A recent lawsuit filed against Amazon suggests that NLRB staff are taking an overly aggressive approach to enforcing the National Labor Relations Act (NLRA) in a manner inconsistent with the law and Supreme Court precedent. We urge you to investigate the safeguards the agency puts in place when filing complaints so that enforcement activity does not turn into frivolous harassment, or worse, outright intimidation, of employers exercising their rights. under the law.

For your information, Section 8(c) of the NLRA states that with respect to employer speech: “The expression of views, arguments or opinions, or the dissemination thereof, that whether in written, printed, graphic or visual form, shall not constitute or be evidence of an unfair labor practice under any provision of this Act, if such expression contains no threat of retaliation or force or promise of advantage.This has long been interpreted as giving employers wide latitude to communicate their views on union issues.

Further, in Chamber v. Brown, the United States Supreme Court found that the restrictions on employer free speech advanced by the Wagner Act (and enacted by the State of California in the statute challenged in the underlying case) were replaced. by the Taft-Hartley Act, and that attempts to limit employer speech, such as by restricting employee meetings, were inconsistent with congressional intent.

In the spring of 2022, Amazon CEO Andy Jassy took part in two media interviews in which he was asked about unions. His responses were measured and provided an honest take on the company’s views on unions. For example, in a CNBC interview, Jassy clearly stated that: “[I]It is up to employees to decide whether or not they want to join a union. This was followed by the expression of a general opinion that: “We think they better not do it for at least two reasons.” Other truthful statements were made about unions acting as intermediaries between workers and supervisors, and how this could lead to a more “bureaucratic” process.

Despite the generic nature of these comments, the Area Manager for Region 19 has filed a lawsuit against Amazon alleging violations of NLRA Sections 7 and 8(a)(1). As part of the complaint, the General Counsel “seeks an order requiring the Defendant to copy and send, at its own expense, as well as electronically and electronically, any employee notices that may issue in this proceeding to all employees employed at its United States facilities at any time since April 14, 2022. The General Counsel further seeks any other relief that may be just and appropriate to remedy the alleged unfair labor practices.

This complaint seems quite frivolous. The statements in question do not in any way constitute a threat of retaliation or force or a promise of profit. In fact, these comments are exactly the kind of employer speech that section 8(c) was meant to protect. A charitable hypothesis would be that the NLRB is “pulling a shot over the bow” intended to intimidate employers into giving up their free speech rights.

Complaints of this nature may become more frequent given a memo from the General Counsel dated April 7, 2022. In memo GC 22-04, the General Counsel argues that mandatory meetings in which union issues are discussed “intrinsically” involve “unlawful threats”. Although the Council has not adopted this as official policy, the Advocate General has instructed it to do so, regardless of the legal protections of Section 8(c) or Congress’s clear statement of intent in Chamber v. Brown. Given this stance, expect regional offices to follow the logic of memo GC 22-04 and aggressively go after employers who exercise their right to speak out on union issues.

We urge you to investigate the safeguards the agency has in place to review complaints to ensure they do not impede the exercise of rights guaranteed by law. In particular, we encourage you to determine whether the agency issues appropriate guidance and training materials to regional offices to prevent such an occurrence. Enforcement should not degenerate into basic harassment and intimidation of employers or workers. Thank you for your attention to this urgent matter.

Sincerely,

Glenn Spencer Senior Vice President Employment Policy United States Chamber of Commerce

About the authors

Glenn Spencer

Senior Vice President, Employment Policy Division, United States Chamber of Commerce

Glenn Spencer is Senior Vice President of the Employment Policy Division at the United States Chamber of Commerce.

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