News & Commentary

October 5, 2022

Jason Vazquez

Jason Vazquez is a student at Harvard Law School.

In today’s news and commentary, Amazon suspends fifty ALU members for engaging in a concerted work stoppage, the NLRB issues a complaint against Apple and another against Exxon, and the Missouri Supreme Court affirms the validity of a statute targeting public sector collective bargaining rights in the state.

The Amazon Labor Union (ALU) announced this morning that fifty workers at the JFK8 warehouse in Staten Island were suspended by Amazon after engaging in a work stoppage on Monday evening, in protest shortly after a machine in the facility caught on fire, which Iman documented yesterday. Videos of the event depict a chaotic scene in which dozens of workers rally and chant in the warehouse cafeteria, and ALU alleges that ten union leaders who spearheaded the protest were suspended along with an additional forty warehouse workers who refused to return to their shifts. ALU President Christian Smalls called it “a shame” that “due to Amazon’s lack of safety protocols, workers had to take a stand, because they were not feeling as though the company took [the fire] as seriously as they should have.”

The suspensions might constitute a violation of the NLRA, Section 8 of which prohibits employers from interfering with employees in the exercise of rights guaranteed by Section 7 of the Act, including, inter alia, the right to engage in “concerted activities” for the purpose of “mutual aid or protection.” It is not difficult to perceive that a collective refusal to work after a fire erupted in the workplace may represent a concerted activity for mutual protection—indeed, Seth Goldstein, an attorney for the ALU, claimed that the suspension was “a violation of workers’ rights to join in a collective action about the terms and conditions of their employment.” In any event, the ALU has not yet filed a ULP charge with the NLRB. Although the ALU overwhelmingly won a representation election at the JFK8 facility more than six months ago, the  e-commerce conglomerate has continued to refuse to recognize the union as the bargaining agent of the JFK8 employees, even after an NLRB Hearing Officer rejected the company’s bid to overturn the election results last month, recommending the complete dismissal of all of Amazon’s more than two dozen objections to the election.

Labor agitation continues at the largest technology company in the world as the NLRB issued a complaint against Apple Inc. earlier this week accusing the transnational electronics giant of illegally interrogating and discriminating against employees at a store in Manhattan. The complaint, based upon a ULP charge filed by the Communications Workers of America (CWA), alleges that Apple unlawfully discriminated against union activity by enforcing its no solicitation policy only against workers supporting the union—more specifically, by “prohibiting the placement of union flyers on the break room table while permitting nonunion solicitations and distributions.” Current Board caselaw, endorsed by the Supreme Court, permits a company to maintain and enforce a uniform no-solicitation rule, which can be applied to union activity, but selective, discriminatory enforcement of such a rule might constitute an unfair labor practice.

In other NLRB news, the Labor Board issued a complaint alleging that ExxonMobil Corporation’s 10-month lockout of hundreds of workers of a refinery in Texas last year constituted an unlawful effort to remove the union from the facility. The oil company initiated the lockout in May 2021 in response to a strike notice issued by the union, the United Steelworkers (USW) after three months of fruitless contract negotiations, and during the lockout, which affected more than 650 members of the USW and ended in March of this year, the company had informed employees, amid a decertification election, that they could return to work if they voted to decertify the USW as their exclusive bargaining representative. Although the lockout itself may have been lawful, the Board’s General Counsel reasons in the complaint, the company’s leveraging the lockout to explicitly seek decertification converted it into an unlawful one. The complaint is seeking backpay, and a hearing before an NLRB administrative law judge on the matter is scheduled to begin on January 9, 2023.

At the state level, the Missouri Supreme Court on Tuesday reversed a lower court decision finding that a 2018 statute enacted by the GOP-dominated state legislature, and championed by disgraced former-governor Eric Greitens, to limit the rights of public employees in the state had unconstitutionally “eviscerated” the collective bargaining process for public employees. The statute at issue, SB1007, sweepingly limits the application of the workplace protections furnished by the state’s merit system, thereby rendering it easier to hire, fire, and reward public employees, and further provides that all non-merit employees “shall be employed at-will.” The bill was challenged by several unions, including locals of AFSCME, CWA, and SEIU, and the trial court held after a 2019 bench trial that the statute restricted the state from collectively bargaining over certain core terms and conditions of employment, including grievance procedures, just-cause dismissal standards, and seniority protections, and thus violated the right to bargain collectively guaranteed by Article I § 29 of the Missouri Constitution, which provides that “employees shall have the right to organize and bargain collectively through representatives of their own choosing.” The State’s high court asserted, however, that the bill does not infringe upon the constitutional right to engage in collective bargaining because it “does not prevent the State from bargaining in good faith with Unions” but “merely limits the terms and conditions of employment the State is authorized to bargain,” such that the state remains “free to negotiate any and all employment terms and conditions that SB 1007 does not specifically restrict.”

Public employees in Missouri are among the lowest-paid in the nation, and in recent months staffing shortages have forced state agencies to resort to temporary staffing companies and, in some cases, to shutter facilities or reduce services. Indeed, hundreds of Missouri residents cross the Mississippi River every day to labor in public facilities in the state of Illinois, where unionized government jobs yield significantly higher wages.

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