As we previously discussed in June 2022, the National Labor Relations Board (“NLRB” or the “Board”) pursued a 10(j) injunction against a Starbucks in Buffalo, New York after it fired workers for allegedly engaging in union organizing activities—an action taken based on an initiative articulated by NLRB General Counsel Jennifer Abruzzo (see more information on this initiative here). Since then, Starbucks has faced numerous petitions for injunctive relief from the NLRB in regions across the country. Well, it looks like Starbucks is not the only high-profile company experiencing pressure from the GC in the form of 10(j) petitions for their conduct—Amazon has just found itself in the situation.

On November 18, 2022, Judge Diane Gujarati of the Eastern District of New York (“EDNY”) partially granted a temporary injunction pursuant to Section 10(j) of the National Labor Relations Act (“NLRA” or “Act”) against Amazon after it fired one of its workers for allegedly engaging in union-related activities in violation of Section 8(a)(3) of the NLRA. Amazon fired a warehouse worker in its Staten Island facility in April 2020 based on an alleged verbal altercation between him and another co-worker. The Amazon employee filed an unfair labor practice charge on June 17, 2020 in Region 29, claiming that he was fired as a result of his organizing activity.

The Regional Director found merit in the charge and issued a complaint against Amazon. In April 2022, Administrative Law Judge Benjamin Green held that Amazon’s firing was a “discriminatory discharge” in vi0lation of the Act, and ordered Amazon to reinstate him. Amazon appealed the decision and the case was transferred to the Board.

On July 8, 2022, the Regional Director for Region 29 petitioned for a 10(j) injunction in the EDNY against Amazon seeking to force Amazon to, among other things:

  • cease and desist from activity that violates the Act;
  • read such cease and desist order to employees;
  • reinstate the warehouse employee to his position; and
  • expunge the adverse employment action from the individual’s employment records.

In her November 18th decision, Judge Gujarati held that the evidence “amply support[ed]” the Board’s position that the employee was discharged in violation of the Act and, therefore, granted part of the Board’s 10(j) petition requiring Amazon to cease and desist from activity that violates the Act. Judge Gujarati also ordered that Amazon post the order within its Staten Island warehouse and read the order aloud during a facility meeting with the “widest possible employee attendance.” However, Judge Gujarati denied the remaining portions of the Board’s petition requesting that Amazon perform remedial actions related to the worker’s employment, including reinstating him. The Board argued that the worker’s termination not only discouraged employees from engaging in protected activity, but also discouraged them from garnering support for the union and, therefore, reinstatement and an expungement of the employee’s record was necessary. Judge Gujarati disagreed to implement the requested injunction as to these issues, finding that the Board did not present evidence that the termination continued to have any “appreciable effect” on the union’s efforts or on employee willingness to engage in protected concerted activity.

While a 10(j) injunction is generally referred to by the Board and the courts as an “extraordinary remedy,” the current NLRB General Counsel has favored the use of this remedy on numerous occasions over the past couple of years, and she has indicated as much in her public memoranda.  The Board’s recent successful use of 10(j) injunctive relief against companies like Starbucks and Amazon for alleged unfair labor practices during the midst of union organizing campaigns appears to indicate that this may continue in the future.  This could have potentially significant ramifications for employers who could be routinely hauled into federal court for alleged labor law violations and be subjected to potential penalties of contempt of court for failing to comply with federal court orders if the companies engage in future violations.

As always, we will continue to keep you apprised of any updates in this developing area.

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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Melissa C. Felcher Melissa C. Felcher

Melissa Felcher is an associate in the Labor and Employment Law Department and a member of the Labor Management Relations Practice Group and the Counseling, Training and Pay Equity Practice Group.

Melissa earned her J.D. at Brooklyn Law School, where she served as…

Melissa Felcher is an associate in the Labor and Employment Law Department and a member of the Labor Management Relations Practice Group and the Counseling, Training and Pay Equity Practice Group.

Melissa earned her J.D. at Brooklyn Law School, where she served as an Executive Notes Editor of the Brooklyn Law Review. While at Brooklyn Law School, she interned for the Honorable Gregory H. Woods of the Southern District of New York.