NLRB ordered Amazon to bargain with Staten Island workers; it’s now in federal court

The briefs filed October 16 by Amazon and the Teamsters are vastly different, not just because they are coming at the case as adversaries, but because they take an entirely different approach.

Legal arguments by Amazon

The Amazon brief is more on narrow legal grounds about what the NLRB can and can not do.

The Teamsters brief is a 115-page behemoth that relitigates and reviews the entire history of the Staten Island union and the many of the disputes that have been a hallmark of the contentious relationship between the Teamsters and Amazon.

For Amazon, the battle on Staten Island marks the only time it has ever faced off against a unionization drive at one of its facilities and lost. 

For example, a year later, another attempt at unionization at a separate Staten Island facility failed. 

In a closely-watched 2021 election because it was the first of a kind, Amazon beat back a unionization drive at its facility in Bessemer, Alabama. In that case it was not the Teamsters but the Retail, Wholesale and Department Store Workers Union that sought to represent workers there.

Oral arguments…or not

In the Fifth Circuit case, the two sides are far enough apart that their respective briefs couldn’t even agree on whether there is a need for oral arguments.

“While this Court could deny Amazon’s petition for review and grant the Board’s motion for enforcement without oral argument, the Court may find oral argument useful to address the briefing,” the union said in a fence-straddling statement in its brief.

What did Amazon say? “Amazon agrees with (the union) that the issues raised in its petition can be decided without oral argument.”

Why it didn’t bargain

The Amazon brief is notable also in that it says it has not bargained with the union because it was seeking a court to overturn the NLRB’s certification of the election and the April order for it to negotiate. A lack of bargaining was needed to push the issue to a court, the company said.

“An employer cannot obtain direct judicial review of a decision certifying a union election,” the Amazon brief says. “Instead, the employer must refuse to bargain with the union, be found to have committed an unfair labor practice, and then challenge the certification when it seeks review of that finding.”

The legal term of what Amazon is pursuing in its action against the NLRB is a “test of certification challenge.”

NLRB Edge, a blog about the NLRB written by Matt Bruenig, said in a post following the NLRB decision that the board rejected Amazon’s arguments after “finding that all representation issues raised by Amazon either were or could have been litigated in the underlying representation proceeding, and that Amazon offered no newly discovered evidence or special circumstances justifying reconsideration.”

Was it a big win?

Amazon’s brief does touch on allegations it has leveled against the union. It said the union’s Staten Island efforts “engaged in a campaign marked by threats, coercion and intimidation.” It also said the union “narrowly prevailed” in its election; by contrast, the union touted the win as being a margin of almost 11% of all ballots cast.

But the more legally-oriented question the Amazon action against the NLRB puts before the Fifth Circuit is focused on a union request that beyond just ordering Amazon to bargain, it must engage in an “enhanced remedy.” The union describes the remedy as Amazon reading aloud at a “mandatory meeting”, according to the union, “a notice of employees’ rights under the National Labor Relations Act.”

Although such a reading had been recommended by the NLRB’s General Counsel, the full board rejected that remedy.

Amazon is recommending rejection of that union request because, one, it thinks the election on Staten Island is going to be decertified, making the issue moot.

Second, the “enhanced remedy” of the reading of rights in a test-of-certification case has no precedent in labor law, according to Amazon.

And third, Amazon says the union has not made a sufficient case that the reading is warranted.

The union says if the Fifth Circuit agrees with Amazon’s arguments, “it would be improper to set aside the election.” Instead, it recommends the case be remanded to the NLRB “to provide further rationale for its decision.”

Joint employer case rolls on

Meanwhile, another battle between the Teamsters and Amazon continues to play out before the NLRB.

The fight there is over an April agreement between Amazon and the NLRB’s General Counsel. That agreement was designed to end a process on terms favorable to Amazon in which a lower rung of the NLRB process in Los Angeles had found that Amazon was a joint employer along with a direct service provider, the independently-owned companies that actually deliver products.

That agreement stopped the process that was launched in Los Angeles from getting to the full board.

Amazon has long argued that its DSPs are independent. The Teamsters have argued otherwise and that Amazon is a joint employer with all of them, given their level of control over the delivery companies. It isn’t a stretch to say that in terms of its labor structure, being held to be a joint employer would be almost an existential threat to the way it does business.

The deal struck by the General Counsel ending the process was favorable enough to Amazon that Teamsters lawyers at the time called it an “ambush settlement agreement.”

The NLRB docket on the case has mostly been quiet in recent months. The last substantive entry on it is a letter from Teamsters attorneys who said that unless there is an “immediate reinstatement of these proceedings,” accepting the agreement “will represent the Board’s capitulation to the corporate interests that operate to the detriment of working people across the country, who depend on the Board to effectuate the Act and protect their rights.”

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