Jassy told CNBC in April 2022 that if employees were to vote in a union, they may be less empowered in the workplace and things would become “much slower” and “more bureaucratic.” Similarly, in the Bloomberg interview, Jassy remarked, “if you see something on the line that you think could be better for your team or you or your customers, you can’t just go to your manager and say, ‘Let’s change it.’”
How can expressing an opinion be in violation of federal law?
I think when a CEO, in their official capacity, says something relating to their employees, it is more than just "expressing an opinion." He is speaking for the company.
The claim was that he was “interfering with, restraining, and coercing employees in the exercise of the rights guaranteed.”
I'm not a lawyer, but the "coerce" language, in particular, seems like it could be relevant. If a CEO makes statements about how unions are bad, it can have a chilling effect on employees' efforts to unionize.
Regardless, a judge, with more facts available than we have, and more knowledge of the relevant law than we have, made this ruling.
As explained below, I find that Jassy’s predictions that unionization
would change the employee-employer relationship were lawful under Tri-Cast
and progeny. As to 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, those statements violated Section 8(a)(1)
because they went beyond merely commenting onthe employee-employer
relationship and did not comply with the standards for protected speech
established by NLRB v. Gissell PackingCo ., 395 U.S. 575, 618 (1969)
Like many NLRB administrative law judges, the judge here has done nothing outside of work for the NLRB. It is no surprise that he found a violation here and it will also be no surprise when he is overturned on appeal.
“Judge Brian D. Gee was appointed in May 2022. Prior to his appointment, he served as the Regional Attorney in the West Los Angeles office of the NLRB (Region 31) for 10 years. Judge Gee joined the Agency as a Field Attorney in Region 31 in 1996. During the first 12 years of his career with the Agency, he gained experience as one of the Region’s lead trial attorneys. He was promoted to Supervisory Attorney in March 2008, Deputy Regional Attorney in May 2010, and Regional Attorney in August 2012. A graduate of Vanderbilt University School of Law, Judge Gee earned his Juris Doctorate in 1995. He graduated from Occidental College in 1987, where he received a Bachelor of Arts degree in History.”
Edit: turning to the linked opinion, we can see how flawed the judge’s argument is based on his argument on 8 where his primary support for his position is a case where both the ALJ and the Board were overturned on appeal: Hendrickson USA, LLC , 366 NLRB No. 7 (2018), enforcement denied by the Sixth Circuit in 932 F.3d 465 (2019), in which the Board agreed with the administrative law judge’s (ALJ)finding that the respondent violated Section 8(a)(1) by saying, “the culture will definitely change,” “relationships will suffer,” and “flexibility is replacedby inefficiency.”
This is the most relevant portion of Hendrickson. You can decide whether or not Jassy’s statements are similar to this fact pattern.
In our view, the Board’s opinion on this issue is inconsistent with Tri-Cast , and therefore its application of the law to the facts of this case does not meet the substantial evidence standard. The statements singled out from the PowerPoint slide can only be reasonably understood as elaborating upon and summarizing the company’s position on the ineffectiveness of third-party representation, which was a lawful argument for the company to make. The first statement—"the culture will definitely change"—does not have negative connotations in isolation and can only take meaning from the surrounding statements. The statements that "relationships suffer" and "flexibility is replaced by inefficiency" are certainly negative, but context shows that they are protected predictions of the consequences of unionization. The slides at appendix 64 and 65 together show that the "loss of our direct employee relationship " (emphasis added) directly stems from the fact that the employees "lose the right to represent themselves." The comments at the August 21 meeting likewise tie interference in the employer-employee relationship to the union’s right to intervene: "we don’t want [a] third party to have to intervene, we want to talk directly to our employees." And the August 24 letter similarly emphasizes the company’s belief that "employees are entitled to represent themselves without third party interference ." (emphasis added). Taken together, these remarks show that the only reasonable way to interpret the brief statements at issue is that Hendrickson believes that a union’s formal right under Section 9(c) to intervene in the adjustment of grievances renders untenable the casual, efficient communication of the company’s "open door policy" and "easy-going atmosphere," and the slide at issue "simply explicates" that position "in layman’s terms." Tri-Cast, Inc. , 274 NLRB at 377.
Finally, the Board’s opinion erroneously suggests that Hendrickson had a duty to present both the pros and cons of union representation. The opinion faults the company’s presentation for suggesting that employees would have a more difficult time influencing their working conditions while "ignoring the fact that, although they may not be at the negotiating table, union members most often have a say in developing bargaining proposals concerning their wages and benefits and other working conditions." 366 NLRB No. 7, *9. But Hendrickson had the right to emphasize the negative aspects of the loss of "direct" relationship, as the Board found in the first portion of its opinion, and Supreme Court precedent does not require Hendrickson to provide the counterargument to its own argument. This language in the Board’s opinion is inconsistent with the NLRA’s policy of "uninhibited, robust, and wide-open debate in labor disputes," Chamber of Commerce , 554 U.S. at 68, 128 S.Ct. 2408, in which both sides may "express themselves on the merits of the dispute in order to influence its outcome," Va. State Bd. of Pharmacy , 425 U.S. at 762, 96 S.Ct. 1817 (citing Gissel , 395 U.S. at 617–18, 89 S.Ct. 1918 ). Therefore, the Board’s conclusion is not supported even by substantial evidence
> Like many NLRB administrative law judges, the judge here has done nothing outside of work for the NLRB. It is no surprise that he found a violation here and it will also be no surprise when he is overturned on appeal.
Are you making the argument that his extensive experience in his profession is a bad thing?
For corporate, it makes almost no sense to do the monkey dance to try to overcome a PIP unless you’re close to your next vesting period.
The way it works is they give you a choice when you are put on PIP to either take the severance - in my case $40K - and “leave immediately” or try to work through the PIP.
If you fail the PIP you get one third of the severance amount.
You can take that or dispute it. If you dispute it you get half the third.
When I was given the option, I didn’t even give my manager the chance to explain what I needed to do to overcome the PIP. I asked them how much do I get if I sign to leave and can they send me the link.
I talked to my wife and I signed within the hour.
I knew someone would hire me either full time or at least throw a consulting contract my way (I worked on Professional Services).
Let’s just say I had multiple opportunities to choose from before my paid out PTO had elapsed let alone my severance
A lot of people have either straight up bad ideas or ideas that don't take into account things that people and departments outside of their immediate circle need/want.
Most people's ideas aren't novel so they won't be implemented for the same reasons they weren't last time. Occasionally, someone does come up with something new and a good manager should recognize that but the experience for the vast majority of people is that they were ignored.
Which it was. He lied about a union taking away employees “empowerment”, and got smacked down by a judge for doing so.
If anything it’s a reminder of exactly why unions are needed more than ever. Amazon of all companies is known to treat their employees like disposable cogs.
> If anything it’s a reminder of exactly why unions are needed more than ever.
Except in the software industry, there's too many stupid people who think they are really a "10x programmer" and fall for the Hank Hill special "SHH I'M PAYING YOU MORE BECAUSE YOU'RE A ROCKSTAR! DON'T TELL YOUR COWORKERS!"
It's like most people took a boot licking course or something lol.
> Amazon of all companies is known to treat their employees like disposable cogs.
Amazon in my area has literally ran media ads (not paraphrasing, direct quotes): "Need a job? Can pass a background check? No interview, start as soon as tomorrow."
Have you ever worked in a union in the US? Some absolutely do take away employee empowerment. I worked a number of blue collar jobs earlier in life, and have many stories.
I worked as an auto parts delivery driver, and one day I delivered some parts to a machine shop. As I started opening the front door, I could hear a blaring high-pitch wining noise coming from the shop area. I got to the office and there were 4 guys just sitting with earplugs in. I asked the what was going on, and they told me that one of the machines had broken but they weren't allowed to turn off the power switch because of union rules. They had to wait until the proper union guy showed up to turn off the switch. And no, this wasn't some super special switch, it was just a 50 amp breaker. I think it's pretty clear they lost some empowerment.
I worked as an aircraft refueler in a climate that during fall would get fairly cold in the morning (20 deg F) and warm in the day (70+ deg F). One of our trucks had sensitive brakes that would often need a quarter-turn on a small screw that controlled airflow once the temperature went up (or down at night). It was trivial to do, but I wasn't allowed to even touch it because of union rules taht specified that only the mechanics union could "perform maintenance on the vehicles." So I routinely had to sit on the ramp for hours in the middle of the day waiting for maintenance to drive their truck out and turn the screw. I once suggested to our manager that we should schedule daily maintenance around noon each day since that is around when it usually stopped working, and union rules had an enumerated list of valid "scheduled maintenance" work that could be done, and that wasn't on the list, so he was powerless to do anything about it. I'm sure it didn't hurt that "unscheduled maintenance" cost us more than scheduled.
I've heard plenty more stories from friends as well. Our local plumbers union was apprently quite something. They had rules around seniority that basically fucked over everyone with less than 10 years experience and made for a sweet life for everyone over. People worked their asses off for the worst jobs with inferior pay on the hope and dream for their turn at the top end of the pyramid some day when they got their turn to sit on top and exploit the people on the bottom.
I'm not anti-union (some situations absolutely need unions to prevent extreme exploitation), but I am anti-blanket-pro-union. Some unions are really trash and should not exist.
So yeah, if you're going to say that he "lied" then I think you need to explain what evidence you have that he knew what he said was not true. If he has any experience with unions, there's a good chance he has specific situations in mind.
People usually believes union has only positives. And that is why CEOs try to squashed it. Everything has pros and cons. Unfortunately if the crowd is predominantly pro-union, minority like yours will be construe as hostile and suspected as management disguised to spread lies. I usually told my unionized colleagues just upgrade yourself constantly and change jobs often. More than 20 of my ex-collegues did this and fare incredibly well compare to those stuck to union protection mentality.
I've been in three different unions and posted similar about my experiences in the past and am usually downvoted to hell for it because of peoples' ideological alignment not allowing them to consider opposing experiences/viewpoints as reasonable.
My amateur take here is, saying that something is a possibility, however remote, is different from "if you vote this way, this will happen to you" said by people with the power and motivation to make it happen to you if you vote that way.
Would we expect the same deference given to a mob boss issuing thinly-veiled threats to witnesses? After all, it's not impossible that an accident will totally randomly happen to the witness or their loved ones that prevents them from testifying. The boss is just sayin' there's data that shows accidents sometimes happen to people who testify, that's all.
Yeah that's fair. CEOs being human, it seems unreasonable to expect them to never have opinions, but given the power dynamics/differential they absolutely must be held to a very high standard. This comment didn't feel at all like a threat to me given my personal experience (it felt like a blatant statement of fact), so while I don't agree that this broke the law, I do agree it isn't something he should have said and he needs to do better.
Though personally, I'd much rather know my CEOs real opinion on things, because whether they say it out loud or not they still believe it. I'd rather know where people stand than have to guess/assume.
I wouldn't have minded if he had issued an opinion that the union_might_ do something to members, rather than the leader of the company saying bad stuff will definitely happen to people who side against the company. After all, he has more motivation and opportunity than anyone else to follow through on that credible threat.
Otherwise, is the mob boss in my example just expressing an opinion, too?
>I worked as an auto parts delivery driver, and one day I delivered some parts to a machine shop. As I started opening the front door, I could hear a blaring high-pitch wining noise coming from the shop area. I got to the office and there were 4 guys just sitting with earplugs in. I asked the what was going on, and they told me that one of the machines had broken but they weren't allowed to turn off the power switch because of union rules. They had to wait until the proper union guy showed up to turn off the switch. And no, this wasn't some super special switch, it was just a 50 amp breaker. I think it's pretty clear they lost some empowerment.
And yet with that few details, it's just as likely you completely fabricated the story as not. Exactly what machine in this machine shop was powered on and off every day with nothing but a breaker? They had to bring in a specific guy every day to turn on the machine in the morning and off at night with this breaker, but he's not there all the time? They just left it unattended for lunch breaks or had none? And there's only one guy? There was no other power switch? That passed code how? Or you're claiming the machine shop operated 24/7?
That's ignoring the part that in the average datacenter, you also can't "just flip a breaker" - it needs to be done by a licensed electrician for liability reasons, and absolutely nothing to do with unions.
>So yeah, if you're going to say that he "lied" then I think you need to explain what evidence you have that he knew what he said was not true. If he has any experience with unions, there's a good chance he has specific situations in mind.
That's not how that works, sorry. As an officer of a public company he's not allowed to make vague, generalized statements to dissuade workers from unionizing. I'm under absolutely no obligation to explain what he meant for him, I didn't say it.
Which, again, is why he got smacked down by a judge.
Oh, and yes I have worked in a union. I made about 4x minimum wage and had guaranteed leave while in college. I can say that non-union jobs at the time provided nothing close to it for a job that required little pre-existing experience.
If you've worked in environments dominated by unions you most certainly know that that story wasn't fabricated. I had a friend that worked show sites, comic con and stuff like that. She told me that in some states, when they set up a kiosk they weren't allowed to plug plugs into wall sockets because it required someone in the electricians union.
I'm glad you made a lot of money. Were you worth that kind of money? The guy walking around plugging plugs into the wall in my example was most certainly not. I'd rather just not do business than do business in environments where bureaucracies create pointless busy work to keep people paid.
> Exactly what machine in this machine shop was powered on and off every day with nothing but a breaker? They had to bring in a specific guy every day to turn on the machine in the morning and off at night with this breaker, but he's not there all the time? They just left it unattended for lunch breaks or had none? And there's only one guy? There was no other power switch? That passed code how? Or you're claiming the machine shop operated 24/7?
I was an auto parts guy, I didn't work for the machine shop. Also this was over 20 years ago. I have no idea exactly what machine it was. Also I specifically mentioned that the machine had broken, which most people understand to be an unusual state of operation that isn't a typical (especially daily) occurence that happens on a schedule. This is an abnormality in operation. It doesn't need this breaker flipped normally, so you could have answered several of your questions just by reading a little closer what I had already posted. I doubt it was "one guy" in total who could flip the switch (I've never heard of a union of only one person, and I specifically mentioned that it was a union who controlled ability to flip this switch, but given your question I'm guessing you have heard of one-person unions), but that day they were waiting for "one guy." Usually you don't have to send out a whole team to flip a breaker, so "one guy" is usually sufficient. Overall, I trusted that they weren't lying to me. Sure they could have been. I don't see why they would, and I saw those guys often since they ordered parts multiple times per day, so we had a somewhat friendly relationship, but if you want to believe everybody is just lying everywhere then you are free to do so. That would help keep your ideology in tact. The unfortunate side-effect that your blanket support includes defending utter absurdity need not bother you, so carry on.
What if the company had industry data that the statement is factual? That unionized employees are less empowered and companies that have unions do not yield the same ROI in their respective industry as their count parts?
Would it still break federal law if the statement is factual from data? I feel like then the argument can be made that in his capacity it is no longer an opinion or representation of the company, but a stated observation of the industry itself.
Are we sure that the company has industry data proving their claims that the disempowerment etc. is a sure thing, as the CEO phrased it, rather than just a possibility?
If so, that makes the sure-thing claim truly factual, and it will likely be a good defense.
How can expressing an opinion be in violation of federal law?