When Amazon won a massive victory in a union organizing campaign in Alabama, it was predictable that the union would appeal the vote to the National Labor Relations Board (NLRB), claiming the e-commerce giant had engaged in a raft of unfair labor practices (ULPs) during the campaign.
What the upshot will be is anyone’s guess at this point. The five-member board still has a three-member Republican majority until after November. However, President Biden’s abrupt and possibly illegal replacement of the NLRB General Counsel with a pro-union government bureaucrat, which took place while Biden was being sworn in on Jan. 20, may complicate matters.
Peter Sung Ohr, the board’s acting General Counsel, at the end of March issued a memorandum to NLRB personnel asserting that he looks forward to “robustly defending” employees’ speech and assembly rights to engage in concerted activity involving wages and working conditions. His memo refers specifically to the Trump board’s decisions regarding company rules restricting employee behavior, and it is not clear whether his proclamation can be read as an indication that he will intervene in the Amazon vote challenge.
The election results at Amazon’s Bessemer, AL, facility announced on April 9 after the votes were counted by the NLRB were definitive—1,798 employees voting against becoming members of the union and only 738 voting for it. The victory made national news because the media had followed the campaign closely for months.
A union victory in Alabama would have been seen as evidence of future unionization of Amazon’s massive nationwide warehouse workforce. It also would have signaled the resurgence of a labor union movement battered and bruised over the past decade, when it experienced membership decline even while friendly politicians at the federal and state levels strenuously sought to tilt the playing field in their favor. The reality is that the Amazon defeat appears to be further evidence of their failure to prepare for a changing world.
It also remains to be seen whether labor’s allies in the Administration and Congress will succeed in enacting a sweeping legislative package crammed with goodies aimed at helping unions gain back the ground they have lost.
The Retail, Wholesale and Department Store Union (RWDSU), which spearheaded the organizing drive, wants the vote overturned by the NLRB, but their accusations of ULPs perpetrated by Amazon seem pretty small beer. The union says Amazon engaged in a campaign of lies and deception, which boils down to a “you lied” vs. “no, I didn’t” kind of argument the union is unlikely to win.
One charge lobbed against Amazon is the union’s assertion that the company got the local government to speed up the red light cycle at a nearby intersection to make it more difficult for union organizers to leaflet workers who were passing through in their cars.
A report on the vote outcome by the New York Times cited employee explanations that were remarkably sensible and don’t smack of deception. Those interviewed said the company already offered good pay, benefits and working conditions. A long-standing truism held by labor organizers is that workers who believe they are well-paid and well-treated are virtually impossible to organize, something the RWDSU apparently forgot.
According to the Times, members of the largely black workforce also resented and rebelled against the union’s attempt to link the union drive to the Black Lives Matter movement. In addition, most workers rejected the union’s claim that it could do a better job representing them before management than they could do themselves.
For those of you who believe I am just peddling an anti-union line, keep in mind that in one of the headlines accompanying its coverage, the New York Times also asserted, “the company’s decisive victory deals a crushing blow to organized labor.”
It couldn’t have happened at a worse time. COVID-19 devastated many unions in 2020, according to a Bloomberg Law analysis of financial disclosures filed with the Department of Labor which found that at least 13 major unions were hard hit. Among them was RWDSU which lost 7.6% of its membership. Other unions suffering are UNITE HERE, which lost a massive 56% of its members, International Association of Machinists (-13%), the Teamsters (-9.3%), Steelworkers (-6%), AFGE (-5.6%), SEIU (-5.5%), and the Air Line Pilots Association (-5%). Overall, union membership numbers fell by 2.2% in 2020, according to the Bureau of Labor Statistics’ report on unionization.
As the pandemic lessens its grip on the economy some of those numbers can be expected to reverse course, but how many and by how much is anyone’s guess at this point. To be sure, the Amazon vote points to an uncertain future at best for unions.
“For the labor professional, the results of this election certainly suggest that successful union organizing, particularly in large units and even with widespread public or political support, is not a foregone conclusion,” observe attorneys Nelson Cary and P. Alexander Ehler of the law firm of Vorys Sater Seymour and Pease. “The views that matter are those of the employees voting. And, on that issue, the Amazon results serve as a cautionary tale for other employers about considerations that at least some employees view as significant when deciding how to vote in a union election.”
David French, the National Retail Federation’s senior vice president of government relations, commented, “Union representation is a choice for workers, but many clearly prefer opportunities in a competitive marketplace that provides strong wages and benefits over the anonymity of a collective bargaining agreement. The process works and employees can make an informed decision despite the enormous scrutiny under which this campaign was conducted.” This view, of course, is anathema to unions and their political friends and allies.