Amazon Case at Labor Board Could Topple Multiple Precedents

The National Labor Relations Board’s legal arm urged the board to strike down four separate precedents in a pending case against Amazon.com Inc., including one ruling from the 1940’s and another issued less than a year ago.

The NLRB general counsel’s office targeted the precedents in a March 31 brief challenging parts of an administrative law judge’s decision that dismissed several allegations against Amazon related to the company’s efforts to resist unionization at facilities in New York.

Administrative Law Judge Benjamin Green threw out some of those allegations because they relied on arguments to change board precedent to find the company’s conduct illegal, and ALJs are required to apply existing case law. Green also found in his January ruling that Amazon unlawfully enforced its solicitation policy and threatened to withhold wage and benefit boosts during collective bargaining.

The case against Amazon is the latest move in NLRB General Counsel Jennifer Abruzzo’s campaign to shift board law to the benefit of workers and unions over employers.

The brief penned by Abruzzo’s lawyers urges the NLRB to overturn its 1948 decision in Babcock & Wilcox and rule that Amazon’s mandatory anti-union meetings violated the law. While banning such captive audience meetings would take a potent weapon away from employers, the board will likely address that issue in a separate case that’s been pending for more than a year.

The general counsel’s office also seeks three other precedent changes in the Amazon case:

• overturn the 1985 decision in Tri-Cast, which provides employers with leeway to make statements about the impact of unionization on workers’ ability to pursue workplace grievances;
• strike down the standard for determining discriminatory restrictions on the use of company equipment from the 2007 ruling in The Guard Publishing d/b/a the Register Guard and replace it with the test from the 2001 decision in Fleming Cos.; and
• overrule the 2021 decision in AT&T Mobility, which said employers don’t have to rescind lawful workplace rules that they’ve used to restrict workers’ protected activities.

Amazon couldn’t immediately respond to a request for comment Monday.

The case is Amazon.com Services, Inc., N.L.R.B., Case 29-CA-280153, brief filed 3/31/23.