STATEN ISLAND, NY – Gerald Bryson was fired from Amazon in April 2020 after attending multiple protests over the company’s response to the COVID-19 pandemic at its Staten Island, NY facilities.
Almost two years later, and despite the National Labor Relations Board (NLRB) finding he was unlawfully fired, Bryson is still fighting to get his job back.
While the lengthy court process to restore Bryson’s role and grant his much-needed back pay has concluded, his colleagues at the JFK8 facility have formed a union that finds itself in the midst of a contentious election.
Bryson’s dismissal and subsequent delay in his reinstatement overshadowed the trial. And his case isn’t the only unfair labor practices charge against Amazon that remains unresolved as the vote progresses.
“The board could not create laboratory conditions because Amazon violates regulations every day [National Labor Relations Act]said Frank Kearl, an attorney at Make the Road New York representing Bryson pro bono.
“It’s impossible to protect workers’ rights and give workers an opportunity for a true, neutral, democratic vote because the violations are so ingrained in the atmosphere out there at JFK8.”
There are several factors that may explain why Bryson’s case, and similar cases, took so long to resolve. One is that the National Labor Relations Act doesn’t give the NLRB much firepower to work with.
“For electoral misconduct that escalates into unfair labor practices, the board’s remedies are quite limited,” said Jeffrey Hirsch, a law professor at the University of North Carolina School of Law.
The NLRB cannot independently penalize employers for non-compliance, making it much easier for companies to calculate when deciding whether they are exceeding the limit of the rules.
Other unresolved unfair labor practices charges filed during the JFK8 election include one over the arrest of fired employee-turned-President of the Amazon Labor Union (ALU), Christian Smalls, and two other workers outside the warehouse, and one others for Amazon’s use of captive audience gatherings.
The retail, wholesale and department store union, which would represent Amazon workers at the Bessemer, Alabama, site if the union were victorious, also filed an unfair labor practice complaint over mandatory anti-union meetings, which is pending.
In Bryson’s case, Amazon has managed to delay proceedings several times by refusing to comply with requests for evidence, knowing it would not be punished, according to Kearl.
“If there’s no penalty, they can withhold evidence, they can lie to the judge, they can lie to the chamber,” he said. “There are no consequences for their bad deeds.”
The board used one of the relatively few tools at its disposal this month by obtaining a Section 10(j) injunction in federal court to seek Bryson’s reinstatement.
The NLRB sought reinstatement in a court hearing ahead of the union election over concerns that other workers might feel the agency could not protect them, but the judge decided to delay immediate discharge to allow time for discovery.
Make the Road New York filed an amicus brief on Tuesday asking the judge to reconsider that decision, arguing that failure to restore Bryson would only encourage Amazon to delay the case even further, and others would encourage anti-union employers to follow the same playbook.
“Their tactic is delay, delay, delay,” said Kearl. “Time is a weapon and they will continue to use time as a weapon against worker organizers until someone shows up and stops them.”
Amazon has denied wrongdoing in response to the labor grievances and noted the timing of the NLRB’s actions in a response to the decision in Bryson’s case.
“It is noteworthy that the NLRB is seeking an ’emergency order’ immediately before an election, despite having known the facts in this case for over 18 months,” Amazon spokeswoman Kelly Nantel said in a statement. “We look forward to a judge reviewing the facts of this case.”
Amazon’s seemingly unlimited resources, with teams of high-priced attorneys ready to respond to the numerous allegations of unfair labor practices filed during the union campaigns in Staten Island and Bessemer, Alabama, highlight the NLRB’s relative deficit.
The agency has lost almost 40 per cent of its workforce in the past twenty years, an agency spokesman told The Hill, and while case numbers have also fallen slightly over that period, the NLRB is sparsely saturated.
The downsizing was particularly felt in the 26 regional offices, which are responsible for many of the day-to-day activities such as processing substitution cases and investigating worker grievances. An NLRB official told The Hill that staff at the regional offices has been halved since it started 10 years ago.
The lack of staff means issues like Bryson’s unfair labor practices case are often put on hold, causing the delays that have plagued this case.
This is especially true now with a recent surge in requests for representation, cases that staff almost always prioritize due to their tight deadlines.
“This spike in the last year or two, or at least what looks like a spike, especially in elections…is an unexpected drain on resources,” Hirsch said.
Personnel deficits are also noticeable in elections. On the first day of voting at JFK8, when nearly a thousand workers tried to cast their ballot, the agency had just seven employees on site to process voters, according to an ALU organizer.
Some NLRB employees have also had to expend time and energy negotiating with their own employer.
The agency has called for regional staff to return to offices multiple times during the pandemic, while the board’s staff union is actively involved in negotiations over the work-from-home policy, according to Michael Bilik, a field attorney for the NLRB in New York and the Union National Legislative Chairmen.
“The threat of implementation before negotiations were complete undermines confidence, especially given our mission to prevent and correct this very behavior,” he told The Hill.
The agency withdrew its requirement to return to the office just after the New Year due to the emergence of the omicron wave of the coronavirus. The agency and union agreed on Wednesday to slowly hire staff after the NLRB initially set next week as the required return date.
“We protect these rights for private sector workers across the country, but we basically have to fight to have even a semblance of them ourselves,” Bilik said.
The delays in processing cases due to the NLRB’s lack of enforcement powers and reduced resources are having a significant impact.
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Bryson, who was fired for “bullying, abusive and defaming a colleague” during a protest, according to Amazon, remains unemployed.
They also hamper workers’ ability to organize themselves.
“That’s taller than Gerald,” Kearl said. “This is about the agency’s ability to continue operating and continue to enjoy the trust of the public to make people feel comfortable engaging in protected activities against Amazon or any other employer.”
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