NLRB preliminary finding revives labor organizing at Amazon

FILE - In this March 30, 2021 file photo, a banner encouraging workers to vote in labor balloting is shown at an Amazon warehouse in Bessemer, Ala. The union that tried, and failed, to organize Amazon warehouse workers in Bessemer, says it may get a do-over. The Retail, Wholesale and Department Store Union on Monday, Aug. 2 said that a hearing officer for the National Labor Relations Board has recommended that the vote by workers in April to overwhelmingly reject the union be set aside and that another vote be held in its place. (AP Photo/Jay Reeves, File)

NEW YORK — A recommendation to nullify the election results of an Amazon union vote in Bessemer, Alabama is breathing new life into the labor movement.

The recommendation was issued Monday by a hearing officer for the National Labor Relations Board, who said that Amazon potentially interfered with the April election in which warehouse workers overwhelmingly rejected a proposal to unionize.

Labor experts say that it’s rare for a hearing officer to call for a new election but in the case of Amazon, there’s a good chance it will happen since the NLRB regional director usually sticks with the hearing officer’s guidance.

Moreover, the labor board’s standards in determining a new election favors the union, not Amazon. The board needs to only figure out whether the company “reasonably tended to interfere with the employees’ free and uncoerced choice in the election,” not whether it in fact coerced employees, according to the preliminary 61-page opinion filed by the hearing officer, Kerstin Meyers.

“They are looking at whether there has been conduct that interferes with employees’ free choice,” said William Gould, a law professor at Stanford Law School and the former chairman of the NRLB from 1994 to 1998. “The board does not want the workers to believe that the employer is in control of the process. It’s the government, the impartial third party, that is in control of the process, not the employer.”

In its  filing with the NLRB in April, the Retail Wholesale and Department Store Union, which spearheaded the unionization campaign in Bessemer, said that Amazon threatened workers with layoffs and even closing the warehouse if they unionized. It also said Amazon fired a pro-union employee, but declined to name the person.

Many of the other allegations by the union revolve around a mailbox that Amazon installed in the parking lot of the Bessemer warehouse. It said the mailbox created the false appearance that Amazon was conducting the election, intimidating workers into voting against the union. Security cameras in the parking lot could have recorded workers going to the mailbox, giving the impression that workers were being watched by the company and that their votes weren’t private, according to the retail union.

In making her recommendation, Meyers wrote that the NLRB must consider several factors, including the number of incidents; the severity of the incidents and whether they were likely to cause fear among employees in the voting unit.

“The evidence demonstrates that the employer’s conduct interfered with the laboratory conditions necessary to conduct a fair election,” Meyers wrote.

Still, labor experts predict that any final outcome could take months, with lots of appeals from both sides. And many believe that even if there is a do-over, Amazon would still be victorious given the high turnover of workers at the company’s warehouses, which makes it difficult for unionizing efforts to gain any steam.

“It would be a huge moral victory to throw out the election, especially with all the serious allegations,” said Kent Wong, the director of the UCLA Labor Center. “But it still would be an uphill fight in securing a victory at the election.”

Even if the union won, Amazon could appeal, says Alexander Colvin, professor of labor relations, law and history at Cornell University.

“They could argue that somehow the election was tainted,” he said. “They have a lot of ability to drag it out procedurally and not engage in bargaining.”

The process for any conclusion is expected to be lengthy.

Both Amazon and the RWDSU may file responses to the hearing officer’s recommendation. Then, the NLRB regional director must review the recommendations and issue a decision on whether a new election will be ordered. A decision could take a few weeks, according to the labor board, and either party could appeal the decision to the full NLRB board in Washington.

So far, Amazon has indicated it is ready to fight, issuing a statement late Monday that its employees “voted overwhelmingly in favor of a direct connection with their managers and the company. Their voice should be heard above all else, and we plan to appeal to ensure that happens.”

The Coalition for a Democratic Workplace, which represents more than 600 major business organizations including the U.S. Chamber of Commerce and the National Restaurant Association, slammed the NLRB’s preliminary recommendations, which could overturn the will of Amazon’s workers.

“It’s disappointing that the NLRB is considering to side with Big Labor by setting aside the will of American workers,” said Kristen Swearingen, chairman of the coalition in a statement.

Stuart Applebaum, president of the RWDSU, said that he wasn’t surprised by the hearing officer’s recommendations and that if another election is held, the union will have a better chance of being victorious. He says labor organizers are still on the ground in Bessemer and he is seeing the pro-union movement grow more among the workers.

“Amazon may have won the first vote count, but they are losing the debate all over the world,” Applebaum said.