Vice President, Labor Policy, U.S. Chamber of Commerce
March 23, 2022
Despite its ostensible role as a neutral arbiter, the National Labor Relations Board (NLRB) has a penchant for tilting the field in favor of labor unions depending on who is running the agency. Its most recent shenanigan involving the retail giant Amazon—a curiously-timed court petition— is an unfortunate example of this phenomenon.
On March 17, an NLRB Regional Director filed a petition in federal court seeking an injunction under Section 10(j) of the National Labor Relations Act (NLRA). The petition asked the court to force Amazon to rehire an employee who had been fired from his job at the company’s fulfillment center in Staten Island, NY (known as its JFK8 facility). Despite the drama of using 10(j), this termination was hardly an emergency, in fact it took place a full 23 months ago.
According to the NLRB, Amazon’s decision to fire the employee was illegal because it violated the NLRA’s protection of concerted activity, as the employee was engaged in protests over Amazon’s COVID-19 policies. Amazon maintains that the employee was terminated because he “publicly, viciously, and profanely berated a female coworker over a bullhorn and social media broadcasts,” which it called a “vile, offensive, and disparaging verbal attack … that no employer ever would—or should—tolerate or accept in a civilized workplace.” According to at least one news report about the language used, Amazon’s characterization would seem pretty accurate.
As observers of labor policy know, the NLRB has a questionable record when it comes to employer policies such as requiring civility in the workplace. During the Obama administration, the NLRB attacked such policies and deemed them illegal. In those days, the Board believed that requiring courtesy in the workplace interfered with organizing rights, and it seems the current Board is taking the same view.
The NLRB has a history of this type of behavior, such as when the Board tried to force the Cooper Tire & Rubber Company to rehire a worker who had used ethnic slurs on the picket line. Apparently, the NLRB has now come full circle and thinks that “disparaging verbal attacks” should be an acceptable part of the workplace environment. Someone might want to alert the EEOC.
What makes this situation worse is the fact that employees at the JFK8 facility are about to have a union representation election, and the NLRB’s sudden demand for an injunction seems dubiously timed to sway voters.
As the NLRB acknowledged, the union involved, the nascent Amazon Labor Union (ALU), first filed an election petition on October 25, 2021, but withdrew it because it had not demonstrated the required 30% showing of interest among employees. The ALU filed a second petition on December 22, 2021, and after nearly two months of negotiating, Amazon and the union agreed on terms to hold the impending election.
In none of that intervening time—not to mention any time prior— had the NLRB sought an injunction regarding the terminated employee. Yet, just as ballots are about to be cast, the agency maintains that Amazon should be forced not only to rehire the terminated employee (even if it means firing someone else), but also post copies of the court’s order (should it issue one)—both in English and Spanish—“in all breakrooms, bathrooms, and bathroom stalls” at Amazon’s JFK8 facility. It also asked the court to require Amazon to hold one or more mandatory employee meetings at which company management would read the court’s order aloud. It seems obvious that all of this would paint Amazon in a less than flattering light. The NLRB frequently cites employers for disturbing the “laboratory conditions” it seeks to maintain during an election. The agency is not supposed to disturb those conditions itself.
An “October surprise” is one of the oldest dirty tricks in the political playbook. But they typically come from one’s opponent, not a referee.