Today the U.S. Court of Appeals for the D.C. Circuit decided a case concerning the allegation of unfair labor practices at Curaleaf Arizona, a medical marijuana dispensary. In Absolute Healthcare v. NLRB, the court granted Curaleaf's petition challenging some NLRB findings that the company had committed unfair labor practices under the National Labor Relations Act.

The fact that Curaleaf is a medical marijuana dispensary makes this an interesting case. While Curaleaf's activities are legal under Arizona law, they are criminal under federal law, so Curaleaf is engaged in a criminal enterprise. This makes it interesting, to say the least, for a federal agency (the NLRB) to police Curaleaf's treatment of its employees. (For an exploration of other curiosities caused by the state-level legalization of the distribution and sale of marijuana, see my book, Marijuana Federalism: Uncle Sam and Mary Jane.)

Judge Millett wrote the panel opinion, granting Curaleaf's petition insofar as it challenged the NLRB's findings. (Some of the NLRB's findings were uncontested.) Senior Judge Ginsburg and Judge Walker joined the opinion. Judge Walker also wrote a separate opinion raising questions about whether the NLRA reaches allegedly unfair labor practices by employers engaged in businesses that remain illegal under federal law.

Congress empowered the National Labor Relations Board to protect the labor rights of certain employees of certain employers that affect interstate commerce. It is an undeniably broad grant of jurisdiction. But it may not be quite as broad as the NLRB assumes.

Consider the facts of this case. The NLRB ordered a criminal enterprise called Curaleaf Gilbert to pay a drug dealer to sell illegal drugs. That is a curious order from the branch of government tasked with faithfully executing federal law.

I can imagine three arguments in favor of the NLRB's jurisdiction over marijuana dispensaries like Curaleaf, but each has flaws.

First, many people believe marijuana should be legal. There are thoughtful people on both sides of that policy debate, and momentum may well be toward legalization. But for now, marijuana remains illegal at the federal level, notwithstanding the Department of Justice's nonenforcement.

Second, Arizona law allows Curaleaf to sell marijuana.6 But federal criminal prohibitions preempt conflicting state law. And those prohibitions cannot be displaced by an agency advisory memo.

Third, the NLRB usually retains jurisdiction even after an employer breaks a law. Indeed, Congress tasked the NLRB with holding employers accountable when they violate federal labor law. But that's when the enterprise is otherwise legitimate — not necessarily when its sole aim is to sell an illegal product or provide an illegal service.

That distinction may be more significant than the NLRB appreciates. After all, rings of bookies and counterfeiters affect interstate commerce, but the NLRB does not seem eager to adjudicate their labor disputes. Ditto for street gangs.

Why does that change when a corner boy calls himself a "budtender" and his crew incorporates under state law?

To me, at least, the answer is hazy.

The post Can a Criminal Enterprise Commit an Unfair Labor Practice? appeared first on Reason.com.

Better not read this post out loud to anyone—federal labor regulators might not like it.

The National Labor Relations Board (NLRB) stretched its speech-policing powers to new highs last week when an in-house administrative judge ruled that Amazon CEO Andy Jassy had violated federal labor law by expressing anti-unionization views during several televised interviews in recent years. Specifically, Judge Brian Gee dinged Jassy for suggesting that Amazon employees might be "better off" without a union and the layers of bureaucracy that come with it.

Jassy made those comments during an appearance on CNBC in 2022—during a segment in which he was discussing Amazon's response to ongoing unionization efforts at some warehouses. In the ruling, Gee highlighted similar comments that Jassy made during public forums hosted by The New York Times and Bloomberg.

The First Amendment protects Jassy's right to talk about those things and federal labor law allows employers to discuss unionization as long as they are not harassing or intimidating employees by doing so.

None of that seems to matter to the NLRB. In the ruling, Gee said Jassy had engaged in unlawful "coercive predictions about the effects of unionization" and ordered Amazon to post notices at its facilities reminding workers of their rights.

The punishment isn't really the point, however. Going after Jassy for remarks made in obviously public forums—comments that certainly were not meant to harass or intimidate current or would-be union members—is a signal that the NLRB sees virtually no limit to its powers to police executives' speech.

"Reasonable people may disagree about the line between permissible and impermissible speech" within the bounds of federal labor laws, said Edwin Egee, a vice president at the National Retail Federation, in a statement. "However, if Judge Gee's decision is left to stand, the effect would be to erase this line entirely. Employers would rightly wonder whether they can speak about unionization at all, despite their legally protected right to do so."

Gee's ruling in the Amazon case sits awkwardly alongside other recent rulings by the NLRB that gave wide leeway to employees' speech about similar topics. As the Washington Examiner noted, the NLRB in January forced Amazon to rehire an employee who had been sacked after directing an expletive-laden tirade at a fellow worker.

Meanwhile, some Google employees who were fired after protesting the company's contractual relationship with the state of Israel have filed a complaint with the NLRB asking to be reinstated. The former workers say they were unfairly terminated for engaging in speech that was "directly and explicitly connected to their terms and conditions of work," The Washington Post reported.

It's too soon to know how the NLRB will handle that case, but something has to give. It simply cannot be true that federal labor law permits employees to engage in any and all conduct without consequence, while simultaneously preventing CEOs and employers from speaking freely during media appearances and other public forums.

Federal bureaucrats don't have the authority to decide that all speech is either mandatory or forbidden—and whether they like it or not, the First Amendment applies even to the CEOs of successful businesses.

The post Labor Board Goes After Amazon CEO for Suggesting Workers Might Be 'Better Off' Without Unions appeared first on Reason.com.

A judge found Thursday that Amazon CEO Andy Jassy broke federal law when he told employees they would be less empowered if they voted to join a union, among other anti-union comments given in interviews with CNBC, Bloomberg and The New York Times in 2022. — Read the rest

The post Amazon CEO Andy Jassy broke federal law with anti-union statements appeared first on Boing Boing.