In the matchup between Amazon and the Retail, Wholesale and Department Store Union, round one went decisively to Amazon. Workers at BHM1, the company’s fulfillment center in Bessemer, Alabama, voted 1,798 to 738 against unionizing, with 505 challenged ballots left uncounted. For months, the union has accused Amazon of fighting dirty, and now it’s making those accusations official. On Monday the RWDSU said it has filed objections with the National Labor Relations Board, claiming Amazon violated the terms of the election and asking the board to void the result. Thus begins round two.
The union outlined a whopping 23 objections to Amazon’s conduct, arguing that the company “prevented a free and uncoerced exercise of choice by the employees.” Eight of the objections concern the collection box Amazon installed in the warehouse parking lot to collect ballots for the election. A sign instructing employees, “Speak for yourself! Mail your ballot here,” hung from a tent encircling the box, which vanished after the election.
In its objections, the RWDSU argues that the collection box violated the procedural rules the NLRB spelled out in January. The board never authorized the box and had denied Amazon’s request for one inside the warehouse. The collection box, the union says, created the impression that Amazon, not the NLRB, had control over the election and constituted improper voter surveillance, since security cameras watched the tent. The union claims the company repeatedly instructed employees to vote on-site, calling this “a form of ballot solicitation,” in defiance of NLRB rules. The RWDSU also claims that the campaign slogan on the tent violated bans on electioneering.
In a statement, Amazon wrote, “This mailbox—which only the USPS had access to—was a simple, secure, and completely optional way to make it easy for employees to vote, no more and no less.”
The union’s 15 other claims outline a campaign to allegedly coerce, frighten, and intimidate workers into voting against the union. The RWDSU accuses Amazon’s “agents” of unlawfully threatening employees with the loss of their benefits and pay if the union won and warning that the facility might close altogether. The union claims Amazon stifled the right to free discussion by booting workers out of employee meetings for questioning anti-union talking points, selectively enforced social distancing rules against believed union supporters, and interfered with employees’ ability to talk to the union by pressuring local officials to change policies governing how workers exited the warehouse and change the timing of a nearby traffic light. The union accuses Amazon of creating “an atmosphere of coercion and intimidation” by hiring uniformed off-duty police officers to patrol the parking lot, watching employees and organizers. One claim cites an email Amazon supposedly sent workers, saying they’d have to lay off 75 percent of the proposed unit because of the union.
The union claims Amazon also retaliated against individual union supporters. According to the objections, the company disciplined one outspoken union supporter for challenging anti-union rhetoric. The filing says Amazon illegally interrogated another worker who passed out union authorization cards in nonwork areas. Then the company fired him.
In addition to the alleged threats, the union claims Amazon took actions to win the favor of employees. Once the election was underway, company agents allegedly began soliciting employee grievances and offering to fix them, relaxed certain rules, and offered pay bumps and free merch. The union questioned Amazon’s use of “the Offer,” an annual payout the company offers workers who want to quit, calling it “a threat wrapped as a benefit.” The Offer wasn’t new or specific to BHM1, but a former NLRB chairman told CNBC that the company arguably should have suspended it during the election.
Asked for comment on the objections, an Amazon spokesperson shared the company’s post-election blog post and wrote, “The fact is that less than 16 percent of employees at BHM1 voted to join a union,” a figure that includes the uncounted ballots and employees who didn’t vote. “Rather than accepting these employees’ choice, the union seems determined to continue misrepresenting the facts in order to drive its own agenda. We look forward to the next steps in the legal process.”
There are many reasons workers may have voted no. Some workers said they were satisfied with Amazon’s pay and benefits. Local government, eager to bring jobs to an area hard hit by the decline of manufacturing, heavily courted the company, offering the hefty tax incentives Amazon has made a habit of extracting. The company’s $15 minimum wage is more than double Alabama’s minimum, though it falls short of other unionized warehouses in the state. Some workers worried about losing these jobs if the union won.
Retaliatory firings and plant closures intended to discourage unionizing other locations are illegal, but the penalties amount to pocket change for most employers. Abandoning a new $325 million facility with a 20-year lease would be a bigger deterrent, though even that would not be impossible for a trillion-dollar company to absorb.
However, the RWDSU alleges that Amazon’s anti-union tactics were so egregious, the union barely stood a fighting chance. Labor law violations are common during union elections, says Rutgers labor studies professor Rebecca Givan. Penalties for breaking the law are meager, and many employers consider them a cost of doing business.
Challenges to NLRB elections fall into two categories: objections, which relate to how the election was conducted, were due in the regional NLRB office on Friday. Unfair labor practice charges, basically anything that violates labor law, must be filed within six months of an alleged offense. The RWDSU will likely submit these later. Amazon can also file its own charges, but the company did not comment on whether it plans to do so.
Next, the regional office of the NLRB will likely schedule a hearing, typically within three weeks. During the hearing, both sides can present evidence and call and cross-examine witnesses. If unfair-labor-practice charges have been filed by that point, they might get thrown into the mix or receive a separate hearing later.
The regional director could issue a decision on the objections, or combine them with unfair labor practice charges and refer them to an administrative law judge, who rules on unfair labor practices. Either side can appeal the decision to the five-member national board in Washington, DC—and that’s when national party politics come into play. Republicans have controlled the NLRB since 2017, and they set an employer-friendly agenda during that time. They currently hold a 3-1 majority, with one seat vacant. However, Republican William Emanuel’s term expires in August. President Biden may be able to seat two Democrats by the end of the year, flipping control. If the Amazon case stretches out that long, it may improve odds for any union appeal.
If the board rules in favor of the union, it could overturn the election results and compel Amazon to bargain with the union. The more likely outcome, if the board sides with the union, entails a do-over election.
NLRB elections bear many of the hallmarks of presidential ones. There’s the secret ballot, the get-out-the-vote drive, the canvassing and attack ads. Sometimes there are celebrity endorsements. (In this case there’s even a protracted counting process and suite of legal challenges.) But imagine if one candidate could make you sit in your living room listening to their talking points every day for months, while the other was barred from your property. Imagine if one candidate could gerrymander the voting pool right before the election, adding sympathetic voters (read: temporary workers). Imagine if one party always had more money and access to expensive firms that make a living smearing the other party. Oh, and also one side signs voters’ paychecks. That’s an NLRB election. Oftentimes, a union election loss is less a reflection of workers’ informed will and more an indictment of labor law, says Givan, the Rutgers professor. Many of Amazon’s anti-union tactics were perfectly legal.
Because of the stacked deck, some unions don’t bother with NLRB elections. The Teamsters have considered recognition strikes to unionize Amazon workers—striking until an employer agrees to recognize a union that has majority support. Given Amazon’s ability to shift its operations to nearby facilities, such a campaign would likely need to be massive to stand a chance. Rank-and-file solidarity unions like Amazonians United operate independently, “salting” facilities with workers whose main goal is to organize their colleagues. They lack collective bargaining rights but have held walkouts, like one last week in Chicago to protest the company’s recent overnight “megacycle” shift. Community coalitions like Athena, which has been organizing Amazon employees, aren’t subject to unions’ limits on pickets and solidarity strikes, and have organized issue-specific campaigns, like one last spring around Covid-19 safety. Wrestling a giant like Amazon might take all of the above and more. And it still might not succeed.
One long shot that could greatly impact a future election in Bessemer, or anywhere else in the US: the Protecting the Right to Organize (PRO) Act. The bill, which passed the House in March, includes several provisions that would level the playing field, including a ban on captive audience meetings, which employers often use to denigrate unions. But Senate support currently falls well short of a filibuster-proof supermajority. Biden is considering lumping it into his infrastructure bill, a move several Republicans and business leaders oppose, calling it a giveaway to unions that has little to do with infrastructure.
Outcome aside, the RWDSU says it’s not going anywhere, whether that means a do-over or filing for a fresh election. With an estimated turnover of 100 percent annually at some Amazon warehouses (a figure Amazon disputes, though it won’t provide supporting data), any election will be as good as a new one, given the continuous influx of new voters. While that has posed a challenge for organizers in the past, the RWDSU isn’t starting entirely from scratch in Alabama. Several workers are energized to keep up the fight, and some are preparing hearing testimony. With the benefit of hindsight, plus Covid-19 case counts falling around Bessemer, more campaign options may be on the table a second time around.
“The impact on Amazon’s reputation by this campaign has been devastating, regardless of the vote result. We have initiated a global debate about the way Amazon treats its employees,” RWDSU president Stuart Appelbaum said in a statement. Even Amazon founder Jeff Bezos acknowledged that his company has room to improve, in a shareholder letter on Thursday. “It’s clear to me that we need a better vision [emphasis his] for how we create value for employees—a vision for their success.”
As the postmortems pile up, the union still very much sees itself in this fight. Until the law changes, it will be punching well above its weight.
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