Four years.
That is how long the workers at Amazon’s JFK8 facility in Staten Island waited for an order requiring Amazon to bargain after they voted for union representation. They made history on April 1, 2022, when they became the first Amazon workers in the United States to vote for union representation. They did not receive a bargaining order until April 1, 2026.
Those four years tell an important story about the current state of American labor law. They demonstrate how an employer can continue to litigate long after workers have voted and long after the ballots have been counted. They also illustrate why the constitutional challenges now pending before the Fifth Circuit could have consequences far beyond a single warehouse in Staten Island.
I know this story well because I lived part of it. For approximately two years, I served as counsel to the Amazon Labor Union and spent countless hours litigating against Amazon before the National Labor Relations Board. During that time, I filed hundreds of unfair labor practice charges, challenged unlawful conduct, prepared witnesses, argued legal issues, and helped defend one of the most significant organizing campaigns in modern American history.
In December 2021, I was part of the effort that resulted in Amazon entering into a nationwide settlement agreement with the National Labor Relations Board. The settlement required Amazon to notify employees nationwide of their rights under federal labor law and prohibited the company from forcing employees to leave company property during their nonworking time. By allowing employees to remain in non-work areas before and after their shifts, the settlement expanded workers’ ability to communicate with one another about workplace issues and unionization.
I also participated in litigation that contributed to the National Labor Relations Board’s decision in Amazon.com Services LLC overruling Babcock & Wilcox Co., 77 NLRB 577 (1948). In that decision, the Board held that mandatory captive-audience meetings are coercive and unlawful because they require employees, under threat of discipline, to listen to an employer’s views regarding unionization. That decision overturned a seventy-five-year-old precedent and marked one of the most significant changes in labor law in generations.
I did not observe the JFK8 campaign from a distance. I watched workers organize against one of the most powerful corporations in the world. I watched workers spend breaks talking to co-workers, stand outside before and after shifts, testify under oath, and continue fighting even after years of litigation.
What I witnessed was not outside interference or manipulation. I witnessed workers organizing themselves, understanding the issues, and making decisions about their own workplace.
The election itself was not conducted on a level playing field. During the campaign, Amazon conducted mandatory captive-audience meetings on a massive scale, requiring workers to attend anti-union presentations day after day and hour after hour. Thousands of employees attended these meetings during the course of the campaign.
Amazon enjoyed virtually unlimited access to its workforce throughout the election period. Managers, supervisors, consultants, and attorneys communicated with employees throughout the workday and repeatedly presented the company’s anti-union message. Union supporters, by contrast, often relied on conversations before shifts, after shifts, during breaks, and in parking lots.
Despite those advantages, Amazon lost the election by a decisive margin. The Amazon Labor Union received approximately 55 percent of the vote, defeating Amazon’s anti-union campaign by roughly ten percentage points. This was not a razor-thin election, a tie vote, or a result that turned on a handful of ballots. The workers delivered a clear verdict in favor of union representation.
Rather than accept that result, Amazon filed a series of baseless objections seeking to overturn the election. Among other things, Amazon alleged that Chris Smalls improperly “lurked” in the Amazon parking lot, that employees who challenged management during captive-audience meetings somehow tainted the election process, and that union supporters distributed marijuana in exchange for votes. These allegations generated headlines and consumed enormous resources, but they were ultimately rejected.
As a result of these objections, the parties were forced into almost a month of hearings before the National Labor Relations Board. Twenty-four hearing days were spent litigating whether the election should be overturned even though workers had already voted and the ballots had already been counted. The proceedings consumed substantial time and resources while delaying certification and bargaining.
Amazon is one of the wealthiest corporations in the world. Yet the fledgling Amazon Labor Union was forced to spend approximately $30,000 on a hearing transcript simply to defend an election victory that was ultimately upheld. For a newly formed union, that was a substantial burden.
What makes the years of litigation even more remarkable is that Amazon was not attempting to overturn a close election. The company lost by roughly ten percentage points after conducting mandatory captive-audience meetings and deploying enormous resources against the organizing campaign. Yet despite that decisive outcome, workers spent four years waiting for a final bargaining order while Amazon continued to challenge the result.
Even after losing before the Regional Director, Amazon continued its appeals. The litigation dragged on for years while the workers who voted in the election continued to wait for the company to recognize and bargain with their union. The delays became a case study in how labor law can be used to postpone the consequences of an election result.
Finally, on April 1, 2026, exactly four years after the election, a unanimous National Labor Relations Board rejected Amazon’s objections and ordered the company to bargain with the union. That decision was particularly significant because it was unanimous and included members appointed by President Trump.
The workers voted. Their votes were counted. The union won. A unanimous Board ordered bargaining after years of litigation and review.
Yet the litigation continues. Although every meaningful aspect of the dispute occurred in New York, the future of the JFK8 election may ultimately be decided by the Fifth Circuit, a court located more than 1,500 miles from Staten Island.
The National Labor Relations Board recognized that reality and sought to have the dispute heard in the Second Circuit, where JFK8 is located and where the underlying events occurred. Nevertheless, the case remains in the Fifth Circuit.
On June 9, 2026, Bloomberg Law reported that Amazon’s challenge to the New York City union victory would stay in the Fifth Circuit. As a result, one of the most significant union elections in modern American history will be reviewed by a court with no meaningful connection to the workers, the election, or the workplace at issue.
The significance of that development extends far beyond Amazon. The Fifth Circuit has become one of the principal battlegrounds in a broader effort to limit the authority of federal agencies and weaken workplace protections that workers have relied on for generations.
The Fifth Circuit has already issued extraordinary rulings limiting the authority of federal agencies and has embraced constitutional theories that would have been considered fringe only a few years ago. Most notably, the court has issued rulings preventing the National Labor Relations Board from conducting administrative proceedings based on the theory that administrative law judges and Board members possess unconstitutional protections against being fired by the executive branch. Under this view, officials exercising executive authority must be subject to removal by the President. These decisions strike at the heart of the modern administrative state.
For decades, agencies operated under the framework established by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which generally required courts to defer to reasonable agency interpretations of ambiguous statutes. In Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), the Supreme Court overturned Chevron deference, significantly expanding the power of federal courts at the expense of the agencies Congress created to administer and enforce federal law. At the same time, decisions such as SEC v. Jarkesy, 603 U.S. 109 (2024), have accelerated attacks on administrative adjudication and encouraged challenges to agencies across the federal government.
In my view, the constitutional challenges now being directed at the National Labor Relations Board are part of something much bigger. They reflect an effort to move policymaking authority away from Congress and the agencies Congress created and place it in the hands of federal judges. What concerns me most is that these decisions increasingly resemble a return to Lochner-era decision making, where courts substitute their own views of economic policy for the judgments of elected lawmakers and the agencies responsible for enforcing the law. During the Lochner era, courts routinely struck down laws designed to protect workers, often relying on constitutional theories that placed abstract notions of economic liberty above the realities facing working people. The legal arguments may be different today, but the direction feels familiar. More and more, courts are being asked to decide whether agencies like the National Labor Relations Board should have the authority to protect workers at all.
The constitutional attacks on the National Labor Relations Board, combined with broader efforts to weaken federal agencies, threaten to create a system where workers may have rights on paper but no meaningful way to enforce them. If every major labor protection can be delayed, challenged, or invalidated through constitutional litigation, then the promise of federal labor law becomes increasingly hollow. One of the first things I learned in law school was that a right without a remedy is no right at all.
That is why the stakes extend far beyond Amazon or the JFK8 election. In my view, these cases are not simply about the structure of the National Labor Relations Board or the scope of presidential removal power. They are about whether we are moving toward a return to Lochner-era decision making, where courts, rather than workers, elected representatives, or expert agencies, become the ultimate decision-makers on what workplace protections are allowed to exist.
The workers at JFK8 did everything the law asked them to do. They organized. They debated. They voted. They won. Yet four years later, they are still fighting to secure the benefits of the election they already won. If a trillion-dollar corporation can force workers to spend years defending a victory that was upheld after almost a month of hearings and a unanimous decision by the National Labor Relations Board, then every worker in America should be asking the same question: what good is a right if it can be delayed, challenged, and litigated out of existence before it can ever be exercised?
Four years after they voted, the workers at JFK8 are still fighting to secure the benefits of the election they won. Whatever the Fifth Circuit ultimately decides, its decision will affect more than one warehouse in Staten Island. It will help determine whether workers across the country can exercise rights that are meaningful in practice, not just rights that exist on paper.