Labor legislation failure looms over Amazon union vote

Ballots are being mailed to employees of Amazon’s Bessemer, Ala., location starting Friday, kicking off the second union election in as many years at the warehouse. 

The e-commerce giant decisively won the first round of voting, with 1,798 employees voting not to unionize out of 2,536 ballots counted.

But the union that would represent the Bessemer workers in the event of victory, the Retail, Wholesale and Department Store Union (RWDSU), swiftly challenged that result, alleging that Amazon illegally influenced the election.

The National Labor Relations Board (NLRB) ultimately sided with the union, concluding that Amazon interfered in the vote by pushing for a mailbox to be installed on premises and improperly polling support. The agency scheduled a new vote and Amazon decided not to file a challenge, though the company publicly disagreed with the justification.

Despite the victory of getting a second election, labor experts and Amazon critics are concerned that the company will be able to employ many of the same anti-union tactics it did the first time around without fear of punishment.

Lawmakers have sought to counter such tactics with the PRO Act, a labor bill aimed at correcting the imbalanced power of employers in the unionization process. But after passing through the House with five Republican votes last spring, the bill has been unable to reach the 60-vote threshold in the Senate.

The legislation would have prohibited Amazon from holding highly effective captive-audience meetings with staff, given the union a better shot at securing its much smaller proposed bargaining unit and ratcheted up the consequences of unlawful interference.

Failure to pass the PRO Act a year after the first Bessemer election has frustrated advocates of the bill.

“Of course there is [frustration],” Sen. Bernie Sanders (I-Vt.) told The Hill. “We’re seeing efforts around the country for people to become unionized and we’re seeing corporations responding in sometimes absolutely illegal ways.” 

“Workers need protection and of course we’ve got to give them that protection through the PRO Act,” he added.

At the center of the decision to overturn the results of the first election was the mailbox placed in the the Bessemer facility’s parking lot.

After failing to convince the NLRB to hold an in-person vote, according to documents made public by the RWDSU, top Amazon officials pressed the U.S. Postal Service to install a cluster mailbox for workers to drop their ballots in.

The union contended that because the box was in sight of security cameras and covered with a tent bearing the company-associated slogan “Speak for yourself, mail your ballot here,” a reasonable worker could be led to believe that Amazon was both running the election and monitoring voters.

Although the NLRB found that argument compelling enough to order a new vote, it did not require the box to be moved off of the warehouse’s premises.

Amazon workers and the RWDSU have called moving the box to a “neutral location” on premises insufficient, with the latter filing a request last month for it to be removed entirely.

“The mailbox’s continued existence on Amazon’s property stands as a stark physical memorial of a tainted election,” Jennifer Bates, who has worked at the Bessemer facility nearly since it opened in 2020, told reporters recently. “It is an ominous reminder for all of of us of Amazon’s surveillance capabilities.”

Beyond the mailbox, experts say the fundamentals of the election still favor Amazon.

“In many ways the situation has not changed a great deal from a year ago,” said John Logan, a labor professor at San Francisco State University who has closely followed the election.

Amazon, with its $1.5 trillion market cap, has shown that it is willing to marshal its nearly unlimited resources to defeat unionization efforts at its American operations.

That means bringing in top-drawer union avoidance firms, hiring pricey consultants to persuade workers onsite and bombarding staff with anti-union content.

Critics argue that Amazon not being financially punished for perceived violations during the first election will encourage them to do the same in this one.

“There shouldn’t be a situation in which the company just says, ‘It’s fine, we’ll violate the labor law because there’s really not consequences and we maybe will keep doing that until the unions run out of money,’” said Adam Shah, director of national policy at Jobs With Justice, a member of the anti-Amazon Athena coalition. 

Even at a company without the resources or brazen anti-union tactics of Amazon, organizing a bargaining unit of more than 6,000 workers is a challenge. Reaching that many workers takes far more resources than it does, for instance, at individual Starbucks locations, where union activity has also recently grabbed headlines.

“The employer side make a big deal with the fact that unions win almost 70 percent of NLRB elections, but that’s really incredibly misleading,” Logan said. “If you look at the number of bargaining units that unions win when they’re even over 100, it’s tiny, and then you go to over 1000, it’s absolutely miniscule.”

In a separate case this past December, Amazon did reach a settlement with the NLRB that required the company to notify workers of their rights to organize and allow employees to stay on site for longer after the end of their shifts, but those changes do more to follow existing laws than give workers seeking to unionize a new edge.

Many of these factors that fall in the employer’s favor during union elections could be rectified by Congress or the NLRB itself.

Some of the PRO Act provisions giving the NLRB more teeth were included in the Build Back Better package, but that legislation is all but guaranteed not to pass in its current form.

Some advocates have pushed for the PRO Act to be brought to a vote despite slim chances for approval.

“We know that … we are not at a place where we have 60 votes,” Shah told The Hill. “We also know that working people aren’t going to take it as an excuse if you don’t even try to pass the PRO Act.”

Independent of Congress, the NLRB could return to accepting bargaining groups proposed by unions as long as the units share sufficient “community of interest.” The board shifted away from that standard during the Trump administration but is expected to bring it back.

“I feel confident that the Biden board will go back to its Obama-era rule, which made it easier for the unions to do smaller units,” said Jeffrey Hirsch, a law professor at University of North Carolina School of Law.

If the RWDSU had been allowed to enter the election with its proposed unit, it would have been looking at organizing less than 2,000 workers rather than more than 6,000.

NLRB general counsel Jennifer Abruzzo has also suggested that the agency could try to resurrect the Joy Silk doctrine. The mid 20th century standard held that if a union could show that it had majority of support, an employer could only deny their request for recognition if it possessed “good-faith doubt” of that claim. Since that doctrine was dropped in the late 1960s, employers have been able to force an election without justification. 

“Basically it would be a way to avoid the election process, which is a huge deal,” Hirsch explained. “People would go nuts if the board actually does this.”

Absent changes from lawmakers or regulators, unionization attempts at Amazon or any other major company will continue to face an uphill battle. 

“​​I feel that everything is always stacked against us,” Bates, the Bessemer worker, said. “If the [NLRB] doesn’t change the laws and put a harsher punishment on employers or CEOs of these companies, the bricks will always be stacked against us.”