05/08/2025: Fifth Circuit Rejects Amazon's Appeal of "Constructive Denial" of Injunction
ALJ issues Cemex/Gissel bargaining order. RD rejects too-small unit.
Amazon.com v. NLRB, 24-50761, (Fifth Circuit)
In this case, Amazon appealed what it called the "constructive denial" of its motion for injunctive relief against ongoing NLRB administrative proceedings that Amazon claimed were unconstitutional. The Fifth Circuit dismissed the appeal for lack of subject-matter jurisdiction.
Background
The case arose from union organizing at Amazon's Staten Island fulfillment center. In April 2022, the Amazon Labor Union (ALU) won a representation election. This led to two NLRB proceedings: the "Election Case" challenging the election's validity, and the "Bargaining Case" alleging Amazon's refusal to bargain with the union.
For the Election Case, Amazon filed 25 objections claiming interference by ALU and the NLRB Regional Office. Amazon specifically objected to the NLRB seeking an injunction for an employee's reinstatement just before the election. After a hearing, the NLRB Regional Director certified ALU as the bargaining representative, and the NLRB denied Amazon's request for review on August 29, 2024.
In the Bargaining Case, the NLRB alleged Amazon violated labor law by refusing to bargain with ALU. On August 23, 2023, the General Counsel moved for summary judgment. After denying Amazon's review in the Election Case, the NLRB issued an updated notice to show cause in the Bargaining Case, with a deadline of September 27, 2024, for Amazon to file its supplemental opposition.
Procedural History
On September 5, 2024, Amazon sued the NLRB in federal court seeking injunctive relief to stop the "unconstitutional administrative proceedings." Amazon sought this relief in Texas even though the controversy arose in New York because Fifth Circuit district courts had been granting these kinds of injunctions while all other district courts had been rejecting them.
Amazon moved for a temporary restraining order (TRO) and preliminary injunction on September 10, arguing it would suffer irreparable harm if the administrative proceedings continued.
The district court held a hearing on September 24, 2024, but did not rule by September 27. On that day, Amazon appealed the "constructive denial" of its motion. On September 29, 2024, the district court denied Amazon's request for a TRO, finding Amazon failed to establish irreparable harm.
Court's Analysis
The Fifth Circuit focused on whether the district court constructively denied Amazon's motion by failing to rule before September 27, 2024.
The court applied the analysis from Fort Worth Chamber of Commerce, which established that "what counts as an effective denial is contextual" and depends on whether there is a "legitimate basis for urgency" and whether the litigant acted with "diligence in seeking to expedite briefing and consideration."
Regarding diligence, the court found Amazon did not make it clear from its first filing that a quick timeline was necessary, and it did not repeatedly request swift review. Amazon only specifically requested a ruling once, approximately 24 hours before the September 27 deadline, despite several prior opportunities. The court noted that even when prompted by the district judge for input on timing, Amazon failed to request a specific ruling date.
On the question of urgency, the court determined Amazon failed to establish a legitimate basis. While September 27 was Amazon's deadline to file its response to the summary judgment motion, nothing indicated the NLRB would issue a decision that same day. Both parties acknowledged that NLRB decisions typically take weeks or months to issue.
Whereas in Fort Worth Chamber of Commerce there was an "unusually short timeline for complying with the rule," the court found no similar urgency here. The district court issued its decision one business day after supplemental briefing was complete, but by then Amazon had already appealed.
The Fifth Circuit concluded that since there was no effective denial, there was no interlocutory decision before the court under 28 U.S.C. § 1291(a)(1), and thus the appeal was dismissed for lack of subject-matter jurisdiction.
Dissent
Judge Richman dissented, arguing that the court should have exercised interlocutory appellate jurisdiction. The dissent emphasized that after the September 27 deadline, the NLRB could issue a decision at any time, potentially mooting Amazon's constitutional claims. This created a legitimate basis for urgency because, as the Supreme Court explained in Axon, subjection to an illegitimate decisionmaker is a "here-and-now injury" that "is impossible to remedy once the proceeding is over."
The dissent also contended that Amazon acted with sufficient diligence by filing suit promptly after the Election Case concluded, repeatedly emphasizing the urgency of the situation, and clearly indicating it needed relief before the show-cause deadline.
Significant Cases Cited
In re Fort Worth Chamber of Commerce, 100 F.4th 528 (5th Cir. 2024): Established that determining whether a district court's inaction constitutes an effective denial depends on the context, including the urgency of the situation and the diligence of the moving party.
Carson v. American Brands, Inc., 450 U.S. 79 (1981): Held that interlocutory appeals are permitted for orders with the "practical effect" of refusing an injunction if they threaten serious, perhaps irreparable consequences.
Axon Enterprise, Inc. v. FTC, 598 U.S. 175 (2023): Recognized that subjection to an allegedly illegitimate decisionmaker constitutes a "here-and-now injury" that becomes impossible to remedy once the proceeding ends.
United States v. Lynd, 301 F.2d 818 (5th Cir. 1962): Found effective denial where the district court conducted a merits hearing but unduly delayed ruling on an injunction motion.
General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430 (1932): Established that orders not explicitly refusing an injunction but having the practical effect of doing so may be appealable.
RCL Mechanical, Inc., JD-40-25, 01-CA-336276 (ALJ Decision)
This NLRB decision addresses allegations that RCL Mechanical, Inc. violated the National Labor Relations Act during a union organizing campaign by Plumbers and Gasfitters Local 12. The case arose when employees began organizing in January 2024, with the Union ultimately securing authorization cards from a majority of employees in the bargaining unit.
The ALJ found that RCL committed numerous unfair labor practices during the critical period between the filing of the representation petition and the February 9, 2024 election, which employees voted against unionization 31-14. The violations included threatening employees with reprisals, promising benefits to discourage union support, creating the impression that union activities were under surveillance, interrogating employees about union activities, and claiming unionization would be futile.
Most significantly, the ALJ determined that RCL unlawfully disciplined and/or terminated five employees (Bradford Allen, Shane Froio, James Manduca, Jacob Tomasik, and Georgios Tsimopoulos) because of their union activities. RCL claimed the terminations were based on performance issues, but the ALJ found these reasons pretextual, noting that RCL had encouraged foremen to fabricate complaints about union supporters to justify disciplinary actions.
The ALJ also found that RCL unlawfully reassigned certain employees to isolate known union supporters from employees who were undecided about unionization. The company developed a strategy to "keep the maybe yeses away from the hard yeses" and pair "maybe yeses with hard no's" through strategic job assignments.
Beyond the terminations and reassignments, the ALJ found various 8(a)(1) violations, including managers' statements suggesting union supporters weren't "loyal," promises of favorable job assignments if employees opposed unionization, and threats of layoffs if employees unionized.
Based on these violations, the ALJ determined that a bargaining order was warranted under both the NLRB's Cemex Construction Materials Pacific precedent and the Supreme Court's Gissel Packing standard. The ALJ concluded that RCL had engaged in sufficiently severe unfair labor practices that made holding a fair rerun election unlikely, and since the Union had obtained authorization cards from a majority of employees in an appropriate bargaining unit, RCL was obligated to recognize and bargain with the Union.
The ALJ ordered RCL to offer reinstatement to the five terminated employees with full backpay, remove references to the unlawful disciplines from their files, recognize and bargain with the Union, and have the company's owner read a notice to employees detailing the violations.
Significant Cases Cited
Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Established that if an employer commits unfair labor practices requiring an election to be set aside, a bargaining order is appropriate when a union previously obtained majority support through authorization cards.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Held that bargaining orders are appropriate remedies when employer unfair labor practices make holding a fair election unlikely.
Intertape Polymer Corp., 372 NLRB No. 133 (2023): Reaffirmed the Wright Line framework for analyzing discrimination cases, requiring the General Counsel to show protected activity was a motivating factor in adverse employment actions.
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing alleged discriminatory discipline or discharge.
Daikichi Sushi, 335 NLRB 622 (2001): Distinguished between lawful predictions based on objective facts versus unlawful threats of employer retaliation.
Wolf Creek Nuclear Operating Corporation, 14-RC-361029 (Regional Election Decision)
In this decision dated May 7, 2025, the NLRB Regional Director dismissed a petition by the International Brotherhood of Electrical Workers, Local 403, which sought to represent a unit of just five Component Engineers in the Strategic Engineering workgroup at Wolf Creek Nuclear Operating Corporation's nuclear power facility in Burlington, Kansas.
The employer opposed the petition on two grounds: first, that the petitioned-for unit was inappropriate because Component Engineers share an overwhelming community of interest with other engineers in the Engineering Division; and second, that the Component Engineers are managerial employees excluded from coverage under the National Labor Relations Act.
Legal Analysis
The Regional Director analyzed the petition using the framework established in American Steel Construction, Inc., which requires that a petitioned-for unit: (1) share an internal community of interest; (2) be readily identifiable as a group; and (3) be sufficiently distinct.
While the Director found that the Component Engineers were readily identifiable as a group, the crucial issue was whether they were "sufficiently distinct" from other engineers or whether they shared an "overwhelming community of interest" with other engineers, such that there would be no rational basis for excluding those other engineers.
The Director evaluated several community of interest factors:
Departmental Organization: All engineers work under the Engineering Division, with clear organizational structure.
Skills, Training, and Job Functions: Engineers across the division have similar educational requirements (engineering degrees), participate in similar training, and perform similar engineering functions. The only distinction is in the specific details of their assigned work.
Functional Integration: Strong evidence showed high functional integration in the context of operating a nuclear plant, with components existing within systems and neither able to operate independently.
Frequency of Contact and Interchange: Engineers work on the same floor, share facilities, and collaborate on various projects. They are pulled from all workgroups to serve on High Impact Teams and participate together in eighteen-month outages.
Terms and Conditions of Employment: All engineers follow the same wage progression, receive identical benefits, work similar schedules, and enjoy the same working conditions.
Common Supervision: While immediate supervision differs, all engineers ultimately report to the Vice President of Engineering, and during outages, they are supervised by managers other than their regular supervisors.
Based on these factors, the Director concluded that Component Engineers share an overwhelming community of interest with other engineers in the Engineering Division, with minimal differences between them. The Director also rejected the employer's claim that the engineers are managerial employees, finding no evidence that they formulate or effectuate high-level employer policies or exercise independent discretion beyond routine professional duties.
The Regional Director dismissed the petition, finding that the smallest appropriate unit would be an all-engineer unit in the Engineering Division, rather than the Component Engineer-only unit sought by the petitioner.
Significant Cases Cited
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established the framework for determining appropriate bargaining units, including the "overwhelming community of interest" standard.
NLRB v. Yeshiva University, 444 U.S. 672 (1980): Defined managerial employees as those who formulate, determine, or effectuate employer policies with independent discretion.
United Operations, Inc., 338 NLRB 123 (2002): Outlined the factors for evaluating whether groups of employees share a community of interest.
Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011): Earlier case establishing the standard that was later reaffirmed in American Steel.
LeMoyne-Owen College, 345 NLRB 1123 (2005): Established that the party seeking to exclude employees as managers bears the burden of proving their managerial status.