Amazon’s Constitutional Challenge Fails at Federal Labor Board

Amazon’s lost one of its bids to escape an unfair labor practice case by challenging the constitutionality of the National Labor Relations Board.

The NLRB on Tuesday denied Amazon’s motion to dismiss, saying the company waived its constitutional arguments because it failed to raise them before the case reached the board. But even if Amazon.com Inc. had followed the proper procedure, its claims would fail on the merits, the board added.

The online retail giant is one of a growing list of companies—which also includes Starbucks Corp., SpaceX, and Trader Joe’s—that have responded to NLRB enforcement actions by claiming elements of the agency’s structure violate the US Constitution.

But unlike many of those employers, Amazon has advanced those claims in both administrative and court proceedings.

In its court case, Amazon convinced the US Court of Appeals for the Fifth Circuit to halt an unfair labor practice case after a federal judge “effectively denied” its request for a preliminary injunction by not ruling quickly enough.

Amazon had less success at the NLRB. The company raised the constitutional arguments in a motion to dismiss. The board is considering an administrative law judge’s ruling that Amazon illegally fired a worker who pushed the company to improve Covid-19 safety protocols at its Staten Island warehouse.

The company contested the protections shielding NLRB members and agency judges from being fired by the president, as well as the board’s authority to perform both investigative and adjudicative functions while administering federal labor law.

US Supreme Court and circuit court precedent support the constitutionality of the removal protections and the board’s authority, the NLRB said in its unpublished ruling Tuesday.

If the company loses its administrative case before the board, it can attempt to raise its constitutional challenges before a federal appeals court.

Amazon is represented by Morgan, Lewis & Bockius LLP.

The case is Amazon.com Services LLC, N.L.R.B., Case 29-CA-261755, 10/8/24