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Law360 (May 4, 2021, 7:37 PM EDT) -- Amazon used a protesting worker's dustup with a colleague as an excuse to fire him for his roles in a March 2020 walkout and other actions against the company's COVID-19 safety policies, a National Labor Relations Board attorney said Tuesday during opening arguments in a retaliation trial.
Board attorney Evamaria Cox disputed Amazon's claim that it fired worker Gerald Bryson for hurling epithets and insults during the squabble at an April 2020 rally outside the company's Staten Island warehouse, saying Amazon "routinely condones and rarely punishes with termination" the words Bryson used.
"Amazon seized upon this situation to retaliate against yet another leader of the employee protests, and [Amazon's] feigned shock and horror at Bryson's conduct will be revealed for the pretext that it is," Cox told NLRB Administrative Law Judge Benjamin Green.
Prosecutors in the NLRB's Brooklyn regional office have accused Amazon of violating the National Labor Relations Act by firing Bryson, who took part in and led some of a series of high-profile protests at Amazon's JFK8 warehouse during the early days of the COVID-19 pandemic. The suit is based on a charge filed by worker advocacy group Make the Road New York, which represents Bryson in the case.
Tuesday's session was the trial's third day of proceedings and the first to feature merits arguments after fights over Amazon's compliance — or lack thereof — with subpoenas took up hearings in late March and again this week. Amazon attorneys cast these discovery disputes as a distraction from flaws in the suit Monday, saying Bryson was fired for "vile behavior."
Amazon's stated reason for firing Bryson was a smokescreen for the company ridding itself of a rabble-rouser who fought perceived failures to protect warehouse workers from COVID-19, Cox argued Tuesday. Bryson was part of a group of JFK8 workers who confronted managers at a March 2020 meeting and days later became "one of the public faces of the safety battle" after widely circulated images showed him taking part in the walkout, she said. That April 17, Amazon fired Bryson, ostensibly because of his "vulgar and derogatory comments" toward a colleague at the rally 11 days earlier, according to documents and testimony presented Tuesday.
"[Amazon] would have you believe that on April 6 while he was protesting, Mr. Bryson engaged in misconduct that merited termination," Cox said. "This is not true."
Make the Road attorney Frank Kearl echoed Cox minutes later, contrasting Bryson's treatment with that of Dmitra Evans, the worker he clashed with. Despite starting and escalating the argument "using discriminatory, racist, abusive and derogatory language," Evans was not fired but "instead got a pay raise a few short weeks later," Kearl said.
"This case is about Amazon, one of the largest companies in the world, targeting and terminating an employee for daring to speak out about unsafe working conditions," he said.
These arguments whitewash Bryson's outburst toward Evans, Amazon attorney Nicole Buffalano of Morgan Lewis & Bockius said in her opening statement Tuesday. Bryson used "the N-word, the C-word and the B-word" and implied Evans abused illicit drugs over a more than two-minute tirade he shouted into a bullhorn, Buffalano said, referencing videos and witness accounts.
"No employer or employee in civil society should be forced to tolerate this kind of conduct," Buffalano said.
Following opening statements, Cox called as a witness Tyler Grabowski, an Amazon human resources official who was involved in Bryson's firing. Cox questioned Grabowski on the company's makeup and disciplinary process before probing a series of write-ups Amazon cited as evidence that Bryson's firing was consistent with past practices.
Cox ran down the write-ups, asking how calling somebody "a bitch" or saying they look like they're on drugs compares with misconduct for which workers were disciplined but not fired, such as bringing an unspecified weapon into the workplace and sexual harassment that included unwanted touching.
Grabowski conceded that some of the write-ups detailed conduct worse than what Cox described. Buffalano objected that Amazon fired Bryson for more than just calling Evans a bitch and implying drug use. Judge Green agreed the comparisons were inexact but allowed Cox's questions.
An NLRB representative declined to comment Tuesday. An Amazon representative and Bryson's attorney did not respond to requests for comment.
Amazon is represented by Christopher Murphy, Nicole Buffalano, Richard Rosenblatt and Kelcey Phillips of Morgan Lewis & Bockius LLP.
The NLRB Office of the General Counsel is represented by Evamaria Cox and Matthew Jackson.
Bryson is represented by Frank Kearl of Make the Road New York.
The case is Amazon.com Services LLC, case number 29-CA-261755, in the National Labor Relations Board Division of Judges.
--Editing by Leah Bennett.
For a reprint of this article, please contact reprints@law360.com.
