04/02/2026: NLRB Orders Amazon to Bargain with Union
Amazon will likely appeal the decision.
Amazon.com Services LLC, 374 NLRB No. 82, 29-CA-310869 (Published Board Decision)
The Board granted the General Counsel’s motion for summary judgment in this refusal-to-bargain case arising from Amazon Labor Union’s 2022 election victory at Amazon’s JFK8 fulfillment center in Staten Island, New York.
Amazon contested the Union’s certification and refused to bargain, arguing that the Union was not a valid exclusive bargaining representative. The Board rejected that argument, finding that all representation issues raised by Amazon either were or could have been litigated in the underlying representation proceeding, and that Amazon offered no newly discovered evidence or special circumstances justifying reconsideration.
Amazon also argued the charge was untimely under Section 10(b) of the NLRA because the Union’s initial bargaining demand predated the charge by more than six months. The Board disagreed, reasoning that the Union had requested bargaining immediately after the election, that the Regional Director had certified the Union in January 2023, and that the Union filed its charge within weeks of that certification. Because Amazon openly acknowledged it was “testing certification” and had no intention of bargaining, any further bargaining demand would have been futile. The Board also relied on the principle that a continuing refusal to bargain following certification constitutes an ongoing unlawful act.
Amazon raised several constitutional defenses, including challenges to Board member removal protections and the Board’s combined prosecutorial and adjudicatory functions. The Board rejected all of these, citing Supreme Court and circuit court precedent holding that such structures do not violate due process and that constitutional removal protections claims require a showing of actual harm, which Amazon did not demonstrate.
On remedy, the Board ordered Amazon to bargain on request and to begin the one-year certification bar from the date it commences good-faith bargaining. The Board declined to impose additional remedies requested by the General Counsel, such as a notice reading in English and Spanish. Member Prouty dissented in part, arguing for the notice reading remedy, multilingual posting, and consequential damages under a standard he advocated in Longmont United Hospital.
Significant Cases Cited
Mar-Jac Poultry Co., 136 NLRB 785 (1962): The certification year begins running from the date the employer commences good-faith bargaining, not from the date of certification.
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Representation issues that were or could have been litigated in a prior representation proceeding may not be relitigated in a subsequent unfair labor practice proceeding.
Bally’s Park Place, Inc., 356 NLRB 1147 (2011): A continuing refusal to bargain following a union’s certification constitutes an ongoing unlawful act.
Children’s Hospital of Michigan, 302 NLRB 235 (1991): An employer’s overt declaration that it will not bargain renders further bargaining demands by the union futile and itself constitutes a refusal to bargain.
Ex-Cell-O Corp., 185 NLRB 107 (1970): The Board declined to award consequential damages for an employer’s unlawful refusal to bargain; the Board majority reaffirmed this precedent, while Member Prouty dissented in favor of overruling it.
Curaleaf Massachusetts, Inc., 374 NLRB No. 83, 01-CA-349176 (Published Board Decision)
Curaleaf Massachusetts, a cannabis dispensary in Oxford, Massachusetts, refused to bargain with UFCW Local 1445 following the union’s certification after an April 2024 election. The Regional Director certified the union in July 2024, and the Board denied Curaleaf’s request for review in January 2026.
The General Counsel moved for summary judgment after Curaleaf admitted it refused to bargain but contested the validity of the certification based on objections to the election. The Board granted the motion, finding that all representation issues had been or could have been litigated in the underlying representation proceeding. Because Curaleaf offered no newly discovered evidence and identified no special circumstances, the Board held that no representation issues remained properly litigable in the unfair labor practice proceeding, and found a violation of Section 8(a)(5) and (1) of the NLRA.
The Board also rejected Curaleaf’s due process affirmative defense — that the complaint was premature because the representation case was not yet final — holding that the duty to bargain attached upon issuance of the certification, not at the conclusion of any further proceedings. The Board ordered Curaleaf to bargain on request and, consistent with standard practice, tolled the certification year to begin running from the date good-faith bargaining commences.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Representation issues that were or could have been litigated in a prior representation proceeding may not be relitigated in a subsequent unfair labor practice case.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): The certification year begins to run from the date the employer commences good-faith bargaining, not from the date of certification.
Allstate Insurance Co., 234 NLRB 193 (1978): An employer’s duty to bargain attaches upon issuance of the certification of representative.
UPS Supply Chain Solutions, Inc., 374 NLRB No. 61, 32-CA-309933 (Published Board Decision)
The Board issued a brief supplemental decision in this test-of-certification refusal-to-bargain case, resolving the one remedial question it had previously held in reserve.
UPS Supply Chain Solutions had already been found to have violated Section 8(a)(5) and (1) of the NLRA by refusing to bargain with the Teamsters. The sole issue here was whether the Board should overrule Ex-Cell-O Corp. and require employers in test-of-certification cases to compensate employees for the economic harm caused by the unlawful failure to bargain — a remedy the General Counsel had requested.
The majority declined, citing its February 2026 decision in Longmont United Hospital, which had already rejected that expansion of remedial practice. Because that question was now settled, the Board also dismissed as moot the General Counsel’s subsequent motion to withdraw the overruling request.
Member Prouty dissented on the remedy, reiterating his position from Longmont United Hospital that Ex-Cell-O Corp. should be overruled and that employers should be required to make employees whole for quantifiable economic harm flowing from an unlawful refusal to bargain.
Significant Cases Cited
Ex-Cell-O Corp., 185 NLRB 107 (1970): Established that the Board will not order compensatory relief for employees when an employer unlawfully refuses to bargain in a test-of-certification case.
Longmont United Hospital, 374 NLRB No. 52 (2026): Reaffirmed Ex-Cell-O Corp. and declined to expand remedies for refusal-to-bargain violations in test-of-certification cases.
Peco Foods, Inc., 374 NLRB No. 81, 15-RC-343034 (Published Board Decision)
This is a representation case in which the Board denied the employer’s requests for review of the Regional Director’s decisions directing a union election.
The central dispute concerned the location of the election. The Regional Director initially scheduled the election at the employer’s facility, but the employer refused to allow it to proceed as directed. In response, the Regional Director ordered an off-site election. The Board majority upheld that decision as a proper exercise of the Regional Director’s discretion, while declining to rely on the Regional Director’s application of Austal USA, LLC or her reference to unproven allegations against the employer from separate proceedings.
Member Prouty concurred in the result but wrote separately to argue that the Regional Director had correctly applied Austal USA, LLC and that the Board should reconsider its longstanding practice of defaulting to employer-premises elections. In his view, Regional Directors should weigh the Austal factors in all representation elections and should give serious consideration to mail ballot elections, which he argued enhance accessibility and reduce concerns that employer control of the election site could compromise laboratory conditions.
The Board also addressed procedural issues with the employer’s filings, noting that incorporating prior filings by reference violates Board rules requiring requests for review to be self-contained documents, and that filing more than one request for review of the same Regional Director action is prohibited under Board rules. Even setting aside those procedural defects, the Board denied the third request on the merits, finding the employer had not presented evidence of disenfranchisement sufficient to warrant a hearing.
Significant Cases Cited
Austal USA, LLC, 357 NLRB 329 (2011): Established factors for Regional Directors to consider when determining the location of representation elections.
Omnisource, LLC, 373 NLRB No. 134 (2024): Recent decision in which Member Prouty dissented to argue that the Board’s default preference for employer-premises elections inadequately accounts for employer partiality in representation proceedings.
Wolf Creek Nuclear Operating Co., 365 NLRB 574 (2017): Addressed the standard for relitigating unit appropriateness where a prior determination has already been made.
2 Sisters Food Group, Inc., 357 NLRB 1816 (2011): Recognized that employers are parties to representation proceedings and are not neutral actors with respect to election conditions.
Blue Tarp reDevelopment, LLC D/B/a MGM Springfield, 374 NLRB No. 84, 01-CA-356311 (Published Board Decision)
MGM Springfield operates a casino in Springfield, Massachusetts. Following a secret ballot election in March 2024, the Regional Director certified New England Joint Board, UNITE HERE as the exclusive bargaining representative of the casino’s table games dealers and poker staff. The employer refused to bargain, contesting the validity of the certification based on election objections.
The Board granted summary judgment. It found that all representation issues raised by the employer had been, or could have been, litigated in the underlying representation proceeding. Because the employer offered no newly discovered evidence and no special circumstances warranting reexamination, those issues were not properly relitigable in an unfair labor practice proceeding. The Board also rejected several affirmative defenses, including a Section 10(b) statute of limitations argument (unsupported by facts), a claim that the complaint was void due to the Board lacking a quorum (the General Counsel has independent authority to issue complaints), and a claim that the employer had previously stipulated to the bargaining unit’s appropriateness (which precluded later denial).
The Board found a violation of Section 8(a)(5) and (1) of the NLRA and ordered the employer to bargain on request. Following Mar-Jac Poultry Co., the certification year was reset to begin running from the date the employer commences good-faith bargaining.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Established that representation issues previously litigated cannot be relitigated in a subsequent unfair labor practice proceeding.
Mar-Jac Poultry Co., 136 NLRB 785 (1962): Holds that the certification year begins to run from the date the employer first bargains in good faith, not the date of certification.
Frontier Hotel, 265 NLRB 343 (1982): Authorizes the Board to take official notice of the record in an underlying representation proceeding in a subsequent unfair labor practice case.
Pallet Cos., 361 NLRB 339 (2014): Confirms that the General Counsel has independent authority to issue unfair labor practice complaints regardless of whether the Board has a valid quorum.
Wismettac Asian Foods, Inc., 370 NLRB No. 62 (2020): Holds that a respondent’s denial of a fact previously stipulated to in a representation proceeding raises no litigable issue in a test-of-certification proceeding.
26-05 CY26QTR2 - Interest Rates, OM 26-05, (OM Memo)
The interest rate applied to monetary remedies at the Board has ticked down from 7 percent to 6 percent for dates between April 1, 2026 and June 30, 2026.