Labor News & Commentary May 5 NLRB argues Amazon lacks standing to challenge the Board's rule against captive audience

[Omaha Steve]

https://onlabor.org/may-5-2025/

By Ted Parker

Ted Parker is a student at Harvard Law School and a member of the Labor and Employment Lab.

In today’s news and commentary, Black women are suffering higher unemployment rates under Trump; the NLRB argues Amazon lacks standing to challenge the Board’s rule against captive audience meetings; and the Teamsters use Wilcox’s stayed reinstatement orders to argue against an injunction.

Reporting in Bloomberg documents that Black women are suffering higher rates of unemployment under the Trump administration. Because Black women make up a higher percentage of the federal workforce than they do of the total US population (13% vs. 7.8% in 2024), federal job cuts have had a disproportionate effect on them. Additionally, the administration has created conditions that may discourage employers from hiring Black women. As Andre M. Perry, senior fellow at the Brookings Institution put it, “the overall use of DEI as a slur . . . may be contributing to a lack of hiring of Black women.” This chilling effect could be exacerbated by the threat of False Claims Act litigation against government contractors, who, pursuant to an executive order, must now certify that they do not operate any DEI programs.

Last Friday, lawyers representing the National Labor Relations Board before the Eleventh Circuit argued in a motion that Amazon did not have standing to challenge the Board’s rule against captive audience meetings. The Eleventh Circuit case is an appeal of the now-famous Board case Amazon.com Services LLC, which (as Otto explains) banned captive audience meetings last November. Although the Board used the facts of Amazon.com to announce its new rule, it did not actually apply the rule retrospectively against Amazon in that case. As the Board decision said, although retrospective application to all pending cases is “[t]he Board’s usual practice,” in this case prospective application was “more appropriate.” Now, lawyers for the Board argue that Amazon lacks Article III standing to challenge the rule on appeal because it was never actually applied to them. The parties await the Eleventh Circuit’s decision on whether Amazon will have to strike those arguments from its brief.

In other Amazon v. Board news, last week the Teamsters used the recent D.C. rulings in favor of Gwynne Wilcox’s reinstatement to argue against Amazon’s emergency motion for an injunction blocking NLRB action. This case arose from Amazon’s alleged failure to bargain with a unit of delivery drivers in Southern California. After the Teamsters organized a unit of drivers jointly employed by Battle-Tested Strategies LLC (BTS) and Amazon, Amazon ended its agreement with BTS (allegedly for reasons unrelated to the union). When the Board tried to compel Amazon to recognize and bargain with the union, Amazon asked for an injunction against the Board on the grounds that the Board’s removal protections were unconstitutional. In February, the judge denied Amazon its injunction, but in March, faced with a renewed motion from Amazon, the judge asked for briefs addressing how, if at all, the D.C. rulings on Wilcox’s reinstatement factored in. As John has laid out, the D.C. orders to reinstate Wilcox were stayed by the Supreme Court last month. Nevertheless, because the stay advances no argument, the Teamsters are taking advantage of the favorable D.C. rulings while they can, arguing that Amazon’s arguments have already been rejected by the D.C. District Court and the D.C. Circuit en banc.