Amazon Takes Union Bargaining Fight to Fifth Circuit

Four and a half years after workers at Amazon's JFK8 warehouse on Staten Island voted to unionize, not one bargaining session has produced a contract — and on October 16, the dispute landed before the Fifth Circuit Court of Appeals in dueling briefs from Amazon and the Teamsters.

At issue is an April decision by the National Labor Relations Board ordering Amazon (NASDAQ: AMZN) to negotiate with the union, now aligned with the Teamsters as ALU-International Brotherhood of Teamsters Local 1. Amazon refused to bargain, was found to have committed an unfair labor practice, and is now challenging the certification of the election itself — a maneuver known in labor law as a "test of certification challenge."

That refusal, Amazon argues, was not defiance but procedure.

"An employer cannot obtain direct judicial review of a decision certifying a union election," the company's brief states. "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."

What do the briefs actually argue?

The two filings could hardly differ more. Amazon's brief is a narrow attack on what the NLRB can and cannot do. The Teamsters' submission runs 115 pages and relitigates the entire history of the Staten Island organizing drive and the fraught relationship between the union and the company.

The gulf between the sides shows even on procedure: the parties cannot agree on whether oral arguments are necessary. "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 wrote. Amazon's response: it "agrees" the issues "can be decided without oral argument."

Amazon's brief revives its allegations that the union's campaign was "marked by threats, coercion and intimidation" and characterizes the outcome as a narrow win. The union counters that the margin was almost 11% of all ballots cast.

Context matters here: Staten Island remains the only facility where Amazon has lost a unionization vote. A second drive at a separate Staten Island site failed a year later, and in the closely watched 2021 election in Besseman, Alabama — the first of its kind — Amazon defeated the Retail, Wholesale and Department Store Workers Union.

Why hasn't Amazon bargained?

The company is explicit: it withheld negotiations to force judicial review of the NLRB's certification and the April bargaining order. Matt Bruenig, writing on the NLRB Edge blog after the board's April decision, said 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."

A second front in the appeal concerns a union request for an "enhanced remedy": that Amazon read aloud, at a "mandatory meeting," "a notice of employees' rights under the National Labor Relations Act." The NLRB's General Counsel had recommended that reading, but the full board rejected it.

Amazon offers three reasons to deny the request: it expects the election to be decertified and the issue rendered moot; the remedy has no precedent in a test-of-certification case; and the union has not made a sufficient case that the reading is warranted.

The union argues that if the court sides with Amazon, "it would be improper to set aside the election," and recommends remanding the case to the NLRB "to provide further rationale for its decision."

What about the joint employer case?

A parallel Teamsters-Amazon battle continues before the NLRB over an April agreement between Amazon and the board's General Counsel. That deal halted a Los Angeles proceeding — in which a lower NLRB level had found Amazon to be a joint employer with a delivery service provider — before it could reach the full board.

Amazon maintains its DSPs, the independent companies that actually deliver packages, are just that: independent. The Teamsters contend Amazon's level of control makes it a joint employer with all of them — a finding that would pose an almost existential threat to the company's labor structure.

Teamsters lawyers branded the April deal an "ambush settlement agreement." The docket has been mostly quiet since; the last substantive entry is a letter from union attorneys warning that accepting the agreement without "immediate reinstatement of these proceedings" would represent "the Board's capitulation to the corporate interests that operate to the detriment of working people across the country."

Neither case is close to resolution. For JFK8 workers, a first contract now rests with an appellate court — and, if the union gets its way, another round at the NLRB.