Where does Amazon’s effort to challenge certification of a union at one of its New York locations stand? They’ll likely appeal the National Labor Relations Board (NLRB) finding that Amazon unlawfully refused to bargain with a union, but the company faces an uphill battle in convincing a federal appeals court that the union was wrongly certified.
Under the National Labor Relations Act, employers cannot directly appeal board decisions in election cases. Rather, they must first refuse to bargain with the union and challenge the certification through an unfair labor practice case in a process known as a test of certification. While employers have not typically had a good record of successfully challenging NLRB election decisions, certain arguments may still meet the courts’ standards for reviewing tests of certification.
Hugh Murray, Chair of McCarter’s Labor & Employment Practice, says any arguments that are based on the board’s statutory interpretations may be stronger in court. He noted that courts may be less deferential to the board, for example, if an employer argues that the workers included in a bargaining unit are independent contractors not covered by the NLRA.