Amazon takes challenge to NLRB's structure to US appeals court

By Daniel Wiessner

Sept 27 (Reuters) - Amazon.com on Friday said it will ask a U.S. appeals court to block the National Labor Relations Board from ruling on whether the company must bargain with a union at a New York City warehouse while it pursues a challenge to the agency's structure.

Amazon in a notice of appeal filed in San Antonio, Texas, federal court said U.S. District Judge Xavier Rodriguez's delay in deciding whether to grant the company a temporary injunction amounted to a "constructive denial" that can be reviewed by the New Orleans-based 5th U.S. Circuit Court of Appeals.

Amazon had moved for a preliminary injunction on Sept. 10, a few days after it sued the NLRB.

Rodriguez, an appointee of Republican former President George W. Bush, held a hearing on the motion on Tuesday.

The NLRB is currently considering claims that Amazon has illegally refused to bargain with a union representing workers at the Staten island warehouse known as JFK8, which is the first in the company's history.

The board in August upheld the results of the 2022 election at JFK8, rejecting Amazon's claims that it was tainted by demonstrations held by workers and union organizers and that board officials who oversaw the voting were biased toward the union.

Amazon has faced scores of NLRB complaints accusing the company of illegal union-busting tactics at warehouses across the country, including firing union supporters, making threats, and holding mandatory anti-union meetings. Amazon has denied wrongdoing.

The company on Friday said that its final brief in the JFK8 case was due later in the day, meaning the board could issue a ruling as soon as Monday.

"The bell will have been rung, a decision will have been issued, and this simply cannot be undone. This is the irreparable injury that Amazon is seeking to prevent in the first place," the company's lawyers wrote.

An NLRB spokeswoman declined to comment. The board has asked Rodriguez to transfer Amazon's lawsuit to the Eastern District of New York, which covers the Staten Island warehouse at the center of the case.

The lawsuit is one of about 20 pending in courts around the country to claim that the NLRB's in-house enforcement proceedings violate the U.S. Constitution and to seek to block administrative cases from proceeding before the NLRB.

Elon Musk's SpaceX has asked the 5th Circuit to review what it says was the constructive denial of an injunction by a judge in Brownsville, Texas, in one of two lawsuits that the rocket maker has filed challenging the NLRB's powers.

A different judge in Texas granted SpaceX a temporary injunction in its second case in July, and two other federal judges in the state have blocked board cases in similar challenges by other businesses. The NLRB is appealing those decisions.

Meanwhile, federal judges in Chicago, Washington, D.C., Detroit, and Connecticut have rejected similar arguments against the NLRB in lawsuits by employers facing board cases.

The case is Amazon.com Services v. NLRB, U.S. District Court for the Western District of Texas, No. 5:24-cv-01000.

For Amazon: Kurt Larkin and Amber Rogers of Hunton Andrews Kurth

For the NLRB: Tyler Wiese, Christine Flack, and Michael Dale

Read more:

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Amazon gets labor board complaint on failure to bargain with New York union

Amazon loses challenge to union's election win at NYC warehouse

SpaceX wins block on US labor board case over severance agreements

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(Reporting by Daniel Wiessner in Albany, New York)

((daniel.wiessner@thomsonreuters.com))