The New York Attorney General’s office is arguing that the National Labor Relations Board has “lost its independence” after President Donald Trump fired one of its members in a move that flouted procedure and left it without a quorum for a year.
Attorneys with the AG’s labor bureau last made the argument, joined by lawyers for the Amazon Teamsters union, on Jan. 28 in a hearing over the future of a suit that Amazon brought against a New York law that would let the state public sector labor board bypass NLRB dysfunction to enforce federal labor law.
The AG’s office argued that the issue goes further than a loss of quorum of the five-member labor board to affect its very autonomy.
“Our argument in response is that Congress did not intend that the NLRB would lose a quorum intentionally, not just by happenstance based on… when people resign, but that the president could deprive the agency of the quorum at any time in an instance,” said Julio Sharp-Wasserman, assistant Attorney General, at the hearing.
The NLRB did not comment on the assertions.
So far in Amazon’s suit, the tech giant’s legal team has found more success than lawyers for New York State and the state and Amazon union lawyers face an unyielding audience. U.S. District Court Judge Eric Komitee of the Eastern District of New York granted the e-commerce giant a temporary restraining order in November blocking the state labor board from dipping into NLRA enforcement. He suggested that he’s not likely to decide in their favor.
“The likelihood of success for the defense is higher at the appellate level than the district court level and the sooner we get you there the better,” Komitee said during the hearing.
Amazon initially filed the lawsuit after the state’s Public Employee Relations Board (PERB) took up the Amazon Labor Union’s accusation that the company had fired the union vice president in retaliation for labor activities.
Komittee’s decision found that amendments to the State Employment Relations Act (SERA) are preempted under the U.S. Supreme Court’s 1959 San Diego Building Trades Council v. Garmon ruling, which deems federal employee labor rights to be the exclusive domain of the national labor board — not PERB.
The state Legislature passed the SERA amendment partly in response to President Donald Trump terminating Gwynne Cox, a Democratic member of the NLRB, and leaving the body without a quorum capable of issuing decisions for nearly a year. But Komitee found in his decision to issue an injunction that the Garmon decision took into account a loss of quorum.
In the interest of resolving the case quickly, Komitee moved towards a summary judgement during the hearing. The union and AG had asked for an opportunity to exchange evidence before the judge made his decision. Komittee asked them to do it within a briefing process that will take the next two and a half months.
Defendants said that they plan to use NLRB’s case processing data to prove just how badly its basic functions broke down when it was without a quorum last year. It regained its ability to issue decisions in December, when the Senate confirmed two new members.
Amazon’s lawyer maintained that Komittee should move forward with issuing a permanent injunction in the case.
