By Daniel Wiessner

June 23 (Reuters) - A National Labor Relations Board judge has ordered Amazon.com to bargain with a union representing dozens of workers at a San Francisco warehouse, saying the company failed to recognize the union or call for an election as required by a major Biden-era board ruling.

Administrative Law Judge Michael Silverstein in Washington, D.C., in a decision issued late Monday said Amazon must bargain with about 120 "sortation associates" at the warehouse known as DCK6 after the International Brotherhood of Teamsters in 2023 told the company that two-thirds of the workers had signed off on joining the union.

The decision is a temporary setback for Amazon, as it is based on a 2023 ruling that created a path to unionizing outside of the decades-old election process and that President Donald Trump's appointees to the NLRB are widely expected to overturn.

That decision involving building materials company Cemex requires companies faced with evidence of majority support for a union to voluntarily agree to bargain or petition for an election. For decades before Cemex, the onus was on unions to seek elections absent voluntary recognition by businesses.

Amazon has faced a nationwide union drive at its warehouses and distribution centers in recent years, but workers at only one facility in New York City have voted to join a union. The labor board in April ordered Amazon to bargain with those workers, and the company is challenging that decision in a New Orleans-based U.S. appeals court.

Amazon spokesperson Sam Stephenson in a statement said the company disagrees with Silverstein's decision and will appeal to the board, whose decisions can in turn be reviewed by federal appeals courts.

"Despite their claims to the contrary, the Teamsters don’t represent any Amazon employees or partners – at this site or at any Amazon facility – and the legal process in this case is ongoing," Stephenson said.

Randy Korgan, the director of the Teamsters' Amazon division, said the union would do everything in its power to ensure that Amazon complies with the decision.

"Amazon has repeatedly demonstrated it has no interest in recognizing its workforce or respecting workers enough to meet them at the table. But as the new ruling proves, Amazon cannot forever dodge its legal obligations," Korgan said in a statement.

CHALLENGES TO CEMEX

Amazon had argued that the Cemex decision was unlawful in a number of ways, including that it created substantive new policy without going through the proper rulemaking process.

In a separate case, the Ohio-based 6th U.S. Circuit Court of Appeals ruled in March that the Cemex decision was invalid, and several other challenges to the ruling are pending.

Trump, a Republican, has appointed two new members to the labor board after taking the unprecedented step of firing a Democratic member last year. Republicans now have a 2-1 majority, but under longstanding policy need a third vote to overturn existing NLRB precedent. Trump has nominated a veteran labor lawyer, James Macy, to fill out the majority.

Silverstein on Monday said Amazon's arguments had "some appeal," but that he was bound by the Cemex decision and subsequent board rulings that applied it because the ruling is still in place. The NLRB does not treat appeals court rulings as binding precedent in other cases, allowing it to continue applying its own nationwide standard unless the U.S. Supreme Court steps in.

"[Amazon] is essentially asking me to ignore the Board majority’s rationale in Cemex and adopt the Dissent’s reasoning. That I cannot do," Silverstein wrote.

Cemex also allows the board to order businesses that commit severe illegal labor practices during union organizing to bargain with unions even if they lose an election or one is never held.

NLRB judges have issued Cemex orders in several of those cases, but Silverstein said his decision was the first to arise solely from an employer's failure to file a petition seeking a union election.

The case is Amazon.com Services, National Labor Relations Board, No. 20-CA-353378.

For Amazon: Brian Stolzenbach and others from Seyfarth Shaw

For the Teamsters: Susan Garea of Beeson Tayer & Bodine

Read more:

Amazon must negotiate with Staten Island warehouse workers, NLRB says

NLRB paves way for workers to unionize without formal elections

US court nixes NLRB ruling allowing for unionizing without elections

Amazon joins companies arguing US labor board is unconstitutional

Trump taps veteran labor lawyer to fill out Republican NLRB majority