By John Kruzel and Daniel Wiessner
PHILADELPHIA (Reuters) -On January 27, workers at a Philadelphia Whole Foods voted to become the first store in the Amazon-owned grocery chain to unionize. When the result was announced that night, produce worker Ed Dupree, who helped organize the monthslong campaign, ran to the produce cooler with his coworkers.
Flanked by fresh celery, apples and broccoli, they shared hugs while some cried tears of joy, savoring a victory that showed Dupree that his employer was
not, in his words, an "invincible behemoth."
The celebratory mood quickly evaporated. Later that night in Washington, barely a week into Donald Trump's second term in office, the Republican U.S. president fired Gwynne Wilcox, a Democratic member of the National Labor Relations Board who he accused of disfavoring business interests.
Suddenly the NLRB, a 90-year-old U.S. government agency that oversees private sector labor relations, had fewer than the minimum of three members needed to carry out its core functions such as resolving disputed union elections.
Many companies have seized upon this paralysis as they fight labor campaigns, a Reuters review of NLRB filings showed. Since Wilcox's removal, employers have lodged at least 50 appeals with the NLRB challenging union elections to an agency that cannot resolve them, the Reuters review found, with the appeals coming at a highly vulnerable point in the union organizing process. In at least 22 appeals, companies have argued that elections cannot be certified while the board is shorthanded.
"Without a quorum, the Board cannot function as Congress intended," Wilcox said in an email to Reuters. "The resulting delays and uncertainty unfairly burden workers seeking to exercise their rights to organize."
A week after Wilcox's firing, Whole Foods challenged the election outcome, arguing among other things that "the NLRB has only two members" and therefore the agency's regional offices lose their power to certify union elections.
The U.S. Supreme Court in April and again in May let Trump's firing of Wilcox remain in effect while her legal challenge to her removal plays out, halting a federal judge's ruling that had briefly reinstated her.
The independent board at full strength has five presidentially appointed members. Trump's firing of Wilcox brought it to two, below the minimum of three needed to decide cases. After another member's term expired, the board now has just a single member.
When the NLRB will regain members depends on how quickly the Republican-led U.S. Senate moves to confirm two nominees picked by Trump in July, Boeing's chief labor counsel and an NLRB career staffer. A Senate committee is set to hold hearings on Trump's nominees on Wednesday.
An NLRB spokesman did not respond to a request for comment about the delays. William Cowen, the board's acting general counsel, in an August press release addressing efforts in several states to pass new labor protections said the agency's work has "largely been unaffected" by the lack of quorum.
The White House did not respond to a request for comment about the impact of Trump's decision to remove Wilcox.
EMPLOYERS APPEAL UNIONIZATION VOTES
Like Whole Foods, other companies also have argued that the board is legally barred from resolving union election disputes until its authority is restored.
The appeals identified by Reuters include a CVS store in Wakefield, Rhode Island, and Discovery Cove, an Orlando-based theme park owned by SeaWorld, that argued that union elections cannot be certified while the board has too few members. Nearly all 22 of the cases that raise this issue were filed by a handful of powerhouse law firms that specialize in union deterrence.
Discovery Cove, SeaWorld and their lawyers did not immediately respond to a request for comment. A CVS spokesperson declined to comment.
Erin Schaefer, an attorney representing Whole Foods, discussed the hamstrung board in a podcast that was posted in February to the website of her law firm, Epstein Becker Green, two days after the company submitted its initial NLRB filing objecting to the union election.
"If you have an issue or a decision pending before the board, because the board doesn't have a quorum right now, the board will not be issuing decisions," Schaefer told the podcast.
Schaefer and her firm did not respond to a request for comment.
Trump has sought this year to bring under his sway federal agencies like the NLRB that were set up by Congress to be independent from a president's direct control. The labor law limbo that has stalled unionization efforts provides an example of the real-world impact of a series of Supreme Court interim rulings this year that have let contentious actions by Trump go into effect after lower courts impeded them.
The appeals filed by employers since Trump fired Wilcox involve unionization efforts by more than 2,600 workers in 21 states and Washington, D.C., according to the Reuters review of cases. These have cut across a wide range of professions, from dialysis clinicians in Vallejo, California, to painters in Seattle, to housekeeping employees at a hotel located three blocks from the White House. Four cases are no longer active. Reuters could not immediately determine why they ended.
The rate of election appeals by companies in the time from Wilcox's firing to the end of August was more than double the rate filed during the same time frame last year when the NLRB was fully functional, the Reuters tally showed.
The healthcare industry accounts for more than a quarter of the cases in the Reuters tally of appeals. One example involves a group of Boston-based primary care physicians at Mass General Brigham, the largest healthcare system in Massachusetts, who voted to unionize in May. Organizers cited high levels of burnout and stagnant compensation amid increasing workloads.
"We're a hospital, we're not a business. We're supposed to take care of the sick and needy," said Dr. L. Elizabeth Lincoln, a primary care physician who has helped lead the union drive. "We are not given a seat at the table. That's what we're seeking."
Mass General Brigham filed an NLRB appeal in May, challenging the composition of the group of employees that would be represented by the union. It also argued that the disputed election should not have been permitted to move forward when the board had too few members. Jessica Pastore, a spokesperson for Mass General Brigham, told Reuters that "it would be inappropriate to begin bargaining without a final determination on whom we are bargaining for."
STALLED IN WASHINGTON
Usually, a unionization vote is quickly certified by one of the NLRB's 26 regional offices, triggering an employer's duty to bargain.
Union campaigns are especially vulnerable to being undermined by an employer in their earlier stages, six labor law experts told Reuters. This includes the period arising after an election but before a union has negotiated for better working conditions - the phase that the Philadelphia Whole Foods workers are in.
"Delays are the friend of employers. They undermine worker power, undermine union support and undermine confidence in the government," said Jennifer Abruzzo, who served as the NLRB's general counsel under Democratic President Joe Biden before being fired by Trump on the same night as Wilcox.
'SO SCARY'
Whole Foods filed five objections to the Philadelphia union election, including the NLRB quorum issue and a claim that the union wrongly promised workers that voting for it would result in a pay raise.
The NLRB regional office overruled the objections in May and certified that a majority of workers had voted to be represented by the United Food and Commercial Workers.
The Whole Foods spokesperson told Reuters "we strongly disagree" with the regional office's conclusion. The company filed its appeal to the NLRB in June.
According to Dupree and union officials, Whole Foods has waged a war of attrition at the Philadelphia store during the NLRB's standstill.
Whole Foods has carried out 11 retaliatory firings of pro-union workers since the January election, according to union filings alleging illegal labor practices. One case filed in July alleges that Whole Foods fired three union supporters on the pretext of helping themselves to too many food samples such as cake wedges put out for customers.
"You can use all these tactics to erode the support of the union ... if you make it so scary and so unpleasant and so perilous to be associated with the union," said Michelle Devitt, a lawyer for the union and the fired Whole Foods workers.
Reuters could not independently confirm claims by organizers of retaliation.
Dupree, who has worked at the Whole Foods in Center City Philadelphia since 2016, said that he and his coworkers are persevering as they seek higher wages, more healthcare benefits and greater job security. "Workers organizing is not going to stop just because the NLRB is, you know, stymied," Dupree said.
The Whole Foods spokesperson said the company does not tolerate retaliation and respects the legal rights of its employees. The company declined to comment on specific alleged reprisals. Those allegations are currently under investigation by the NLRB regional office.
(Reporting by John Kruzel in Philadelphia and Daniel Wiessner in Albany, New York; Editing by Amy Stevens and Will Dunham)
