EDITORIAL: The administrative state and the Bill of Rights

Last week, a judge with the National Labor Relations Board found that Amazon CEO Andy Jassy violated federal labor law. His crime? Offering his opinion about the consequences of employees forming a union.

Mr. Jassy in April 2022 had the gall to tell a CNBC host that Amazon employees would be “better off” without a union because it would be harder to “get things done” and they would be less “empowered.” Two months later at a conference where he was interviewed by a Bloomberg TV anchor, Mr. Jassy made similar comments, as he did in November of that year to a New York Times forum.

This resulted in a complaint from union interests, who essentially argued that there is a First Amendment exception for speech made regarding union organizing efforts.

That notion is absurd, of course. Any regulations in the National Labor Relations Act governing union organization campaigns must be interpreted through the lens of the Bill of Rights.

Incredibly, however, Judge Brian D. Gee sided with Big Labor, ruling that Mr. Jassy had engaged in “coercive predictions about the effects of unionization” and made “threatening” comments that were not protected by the First Amendment. He then ordered Mr. Jassy to “cease and desist” from similar statements and mandated that the company post notices at various facilities that included the sentence: “WE WILL NOT threaten you by saying that you would be less empowered if you unionized, that you would find it harder to get things done quickly since unions are slower and more bureaucratic, and that you would be better off without a union.”

Not only did Judge Gee trample upon Mr. Jassy’s free-speech rights, a good case can be made that he went over the line again by compelling Amazon to support a viewpoint directly at odds with its leader’s original assertions.

It’s worth noting that Judge Gee is an administrative law judge for the NLRB. Before his appointment two years ago, he spent 26 years as an attorney for the board. This is the cozy arrangement that characterizes the administrative state on steroids. In-house judges who have a loyalty to the agency they represent and who are employed by the same bureaucracy that prosecutes the alleged violations they hear.

Yes, workers have a right to unionize. But neither labor interests nor management gives up its First Amendment rights during an organization effort.

“If Judge Gee’s decision is left to stand … employers would rightly wonder whether they can speak about unionization at all, despite their legally protected right to do so,” said a statement from the National Retail Federation.

Mr. Jassy should appeal immediately.