Amazon Seeks to Escape General Order to Obey Federal Labor Law

Amazon.com Inc. is fighting a federal judge’s order requiring the e-commerce giant to comply with federal labor law in connection with allegations that the company illegally fired a worker for his organizing activities.

Amazon will assert during oral argument Thursday at the US Court of Appeals for the Second Circuit that the judge overstepped her authority with a cease-and-desist order broadly directing the company to do what the National Labor Relations Act already compels.

The order came in response to a 2022 request from the National Labor Relations Board for the court to require Amazon to rehire the worker. The judge instead prohibited the company from firing workers for organizing and obstructing their right to band together to improve employment conditions.

The appeal over the broader directive shines a spotlight on a fundamental weakness in how the NLRA is enforced.

The law, which protects the right to form unions or otherwise organize to better the workplace, doesn’t allow employees to sue when that right has been violated. Instead, enforcement is left to the NLRB, whose general counsel acts as a prosecutor while the board itself adjudicates unfair labor practice allegations.

But the NLRB’s orders aren’t self-enforcing, so if an employer doesn’t comply voluntarily the agency must convince a federal appeals court that the board’s decision was reasonable and backed by sufficient evidence.

The result is often years of litigation in administrative and judicial forums until a labor law violator faces a ruling from a federal appeals court that it must honor. Failure to comply with a court’s directive can result in a contempt order that includes fines or even prison time.

The law provides the NLRB with a tool that partially addresses the delay built into the enforcement process. The agency can ask a federal district court for a temporary injunction when the time it takes for a board decision threatens to make an eventual remedy ineffective, or to protect the status quo at a workplace during litigation.

The NLRB sought such an injunction against Amazon, leading to the judge’s cease-and-desist order.

Amazon said in its Second Circuit brief that a broad order simply telling it to comply with existing law is “especially improper” in response to an NLRB request for a temporary injunction.

“An ‘obey the NLRA’ injunction permits the Board to end-run the statutory framework for litigating unfair labor practice charges against the enjoined employer; instead, the Board might simply pursue contempt,” the company said.

Judges Debra Ann Livingston and Richard Wesley, both George W. Bush appointees, and Denny Chin, an Obama appointee, will hear the case.

Amazon Fired Organizer

The case stems from a dispute that began in April 2020, when Gerald Bryson and other Amazon workers at a Staten Island warehouse were demonstrating over concerns about the company’s Covid-19 safety protocols.

Bryson had a heated verbal confrontation with another worker during a protest and was fired about two weeks later. Yet he continued to organize his former co-workers, going on to help form the Amazon Labor Union, which won an election in April 2022 to represent employees at the Staten Island warehouse.

An administrative law judge held that Amazon illegally fired Bryson. But the NLRB sent the case back to the ALJ to reassess arguments in light of a board ruling that altered the legal framework for protections on employee speech, further delaying resolution of the allegations.

US District Judge Diane Gujarati, a Trump appointee, ruled in November 2022 on the NLRB’s request for an order for Amazon to reinstate Bryson.

While the NLRB showed there was reasonable cause to believe that Amazon’s termination of Bryson was illegal, the agency failed to establish that the reinstatement order was necessary, Gujarati held. An order forbidding Amazon from firing workers for organizing or otherwise violating their labor law right to organize was just and proper, she ruled.

Amazon argued in its appellate brief that the judge’s order lacks the specificity required by a federal civil procedure rule on injunctions. The company pointed to Second Circuit precedent stating that “an injunction must be more specific than a simple command that the defendant obey the law” to comply with that procedural rule.

Moreover, the judge didn’t explain how her order would protect the status quo or prevent irreparable harm—a requirement for temporary injunctions under the NLRA, Amazon argued.

But the NLRB said in a brief that record evidence showed that Bryson’s termination caused Amazon workers to fear organizing openly, so the order to prevent more illegal discharges was warranted.

The judge’s order was more specific than just “obey the NLRA,” as the judge tailored it to the violation alleged in this case, the agency said.

An NLRB spokesperson declined to comment. Amazon’s lawyer, Stephanie Schuster of Morgan, Lewis & Bockius LLP, didn’t respond to requests for comment.

The case is Poor v. Amazon.com Servs. LLC, 2d Cir., No. 22-3182, oral argument scheduled 11/16/23.