Even with do-over vote at Amazon, unionizing is arduous path

6 minute read

Carts full of products are seen inside Amazon's JFK8 distribution center in Staten Island, New York, U.S. November 25, 2020. REUTERS/Brendan McDermid

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(Reuters) - The case accusing retail giant Amazon of illegal union busting against workers organizing at an Alabama warehouse has the federal labor board dealing with some novel questions of law and some extraordinary conduct in a labor relations dispute.

A National Labor Relations Board official found that Amazon “used its considerable influence to compel the USPS” -- as in the United States Postal Service -- to authorize and install a mailbox on Amazon’s campus to collect ballots for a union election, although workers could have used any government mailbox or post office to send ballots in.

The mailbox was installed within view of multiple security cameras at Amazon's Alabama distribution center, which had about 6,200 hourly workers, as of January. The Retail, Wholesale and Department Store Union alleged it created an impression that employees participating in the election were being surveilled.

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The hearing officer recommended a do-over of the landmark election, which saw employees reject the effort to establish the first union at a U.S. Amazon facility.

Amazon didn’t respond to my request for comment on the finding that it compelled the USPS to meet its demands. The company said in a statement that it's planning to appeal.

The union’s fight is exposing the broad legal latitude given to businesses to counter unionization, despite that it is official U.S. policy to encourage it. It also demonstrates how far some employers are willing to go to squelch worker organizing, with little consequence.

Here’s what NLRB hearing officer Kerstin Meyers found.

At one point, the company was holding captive audience meetings -- mandatory meetings where workers receive anti-union messaging -- six days a week, for eight hours a day.

In January, during the lead-up to the election, Amazon managers e-mailed USPS officials about having a mailbox installed at their facility. About two weeks later, Amazon told USPS it had decided to go ahead with the installation. But USPS officials informed the company that it couldn't do that on its own, saying they would provide a mailbox.

Amazon bought a private mailbox after that exchange anyway, Meyers noted.

The company persisted with the request, too.

Eventually, “Amazon’s priority became USPS’s priority,” the NLRB found.

The “cluster box” Amazon wanted would normally have been provided by a commercial customer themselves. In this case, though, the government furnished and customized a mailbox to Amazon’s specifications, and installed it where Amazon wanted, on Amazon’s tight timeline.

A high-level official testified that he had never seen that happen in 28 years with USPS.

A Postal Service spokesperson declined my request for comment on its role in the dispute.

Amazon later erected a tent around the mailbox and added a banner that encouraged voting – alongside a reference to an anti-union slogan from its counter-organizing campaign.

Meyers rejected Amazon’s defenses, including that there's no NLRB case law saying its actions were unlawful, according to the report.

“The Employer fails to appreciate that this conduct has never occurred before because few, if any, employers have the means, the will, and the influence to” do what Amazon did. The company’s conduct “usurped” the federal government’s “exclusive role in administering Union elections,” Meyers wrote.

So what are the chances now of a union prevailing?

Under the National Labor Relations Act, another NLRB official -- here, the Atlanta regional director -- will first decide whether to accept Meyers’ conclusions. If it loses, Amazon will request an appeal before the five-member board that heads the NLRB (which recently gained a worker-friendly Democratic majority). If those officials reject the appeal, the union gets to hold another election.

So, to review, the hearing officer believes a novel move like having a mailbox installed counts as unlawful interference. But there’s leeway for much of Amazon's other anti-union activity, including the captive audience meetings.

As Meyers noted, the NLRB “does not regulate campaign materials for truthfulness." More importantly, it’s workers themselves who are responsible for reporting their employer’s potential violations, assuming they can recognize them and are willing to risk retaliation.

The NLRA also forbids particularly coercive acts, like firing all unionizing workers or “unit packing” – changing the population that will vote in a union election by adding temps, for example, in order to reduce support.

But in the modern, fissured workplace, where employment contracts are murky and tenuous, many companies can achieve the same effect via their very business model. Amazon’s workforce has an annual turnover rate of about 150 percent, according to a New York Times investigation in June. A former officer told the Times that company leadership considers this a feature not a flaw because founder Jeff Bezos “did not want an entrenched workforce.” Meyers even mentioned in her opinion that nearly all the Amazon workers "who testified were unable to identify their coworkers," and often "didn't even know their supervisor's names."

Encouraging worker solidarity gets a bit tricky if the union has to win over an entirely new workforce by the time the case winds through the anticipated appeals.

And, the company can easily take the issue to court on another appeal, unlike the union.

In this case, the union would be back at ground zero if workers vote against unionizing in a second election because the NLRA doesn’t provide for direct judicial review of election or “representation” cases.

But Amazon has another tool in its box if employees vote to unionize in a rerun election. The company can simply refuse to recognize the union, and force it to file an NLRB “unfair labor practice” case -- which would be subject to judicial appeals.

David Rosenfeld, a labor lawyer at Weinberg Roger & Rosenfeld in Alameda, California, told me that "the company could refuse to bargain" after a union win.

"In that case, the NLRB would issue a 'refusal-to-bargain' complaint that they can seek review of in the federal Circuit Courts," Rosenfeld said.

If Amazon loses such a court case, then the company would probably just receive a final order to recognize and bargain with the union.

As far as the union's current allegations, the NLRB doesn't have the authority to impose traditional remedies, like punitive damages, even if it determines that they're true. The agency can stop an election process and order companies to recognize and bargain with a union, if violations are so egregious that a fair election seems impossible. But that's exceedingly rare, and courts are likely to overturn such an order in a case like this, where the union lost the actual vote count, Bloomberg Law reported April 9.

All in all, the Retail, Wholesale and Department Store Union has a long, arduous path to win this fight. The union’s real victory here may be in exposing the futility of current labor laws and how empowered employers are to block worker organizing.

(By Hassan Kanu)

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com