August 4, 2021
New Orleans The NLRB hearing officer has issued a complaint in the Bessemer, Alabama, union election involving Amazon warehouse workers on the question of representation by the Retail, Wholesale, and Department Store Union (RWDSU), affiliated with the United Food & Commercial Workers (UFCW). In the NLRB process, a complaint is issued after a hearing when objections filed by the losing party, in this case, the union, are found to be meritorious. The regional office has to affirm the hearing officer’s recommendation, but it is unusual to overturn credibility and fact-finding in a hearing, where both parties have been adequately represented.
In other words, nothing is finally settled. Nothing happens all that quickly. After all, please remember that the election was in April, and it is now August. Amazon indicates that it will appeal to the full National Labor Relations Board, which may soon be fully staffed on a bipartisan basis approved by the US Senate. The company could even sue in federal court over an adverse decision at that level.
Rest assured that there is nothing that is going to convince the NLRB to alter this decision. The key issue in the complaint was Amazon’s lobbying for a postal box for ballots in front of the warehouse and then their erection of a tent and possible surveillance of voters. The hearing officer knew his audience within the NLRB and in the decision claimed the company was usurping the role of the Board. That’s a red flag waved throughout the agency. Raising the specter that the “laboratory conditions” of the election were violated goes to the heart of the NLRB’s very existence, making the decision less about the workers or their union, and about the integrity of the Board itself.
Tactically, Amazon may not sue, further running out of time on the clock. In fact, they may reverse course and not even challenge the regional director’s decision. They would have to post an official notice on the bulletin boards or visible spaces at the worksite that would promise not to repeat violations of protections guaranteed under the Act. The hearing officer has recommended a new election. Given the wide margin of the company’s victory, when they beat the union by more than two to one, they may want to try and speed up the timetable to the election. Local 100 faced that when we proved that a cafeteria contractor at Xavier University in New Orleans had directly bribed several workers to turn the election. The NLRB quickly ordered a new election. It was a smaller unit, but how do you “un-bribe” several workers? We saw no way to win. RWDSU would face the same dilemma here. Turnover has been high. The workforce continues to expand. The committee was not the strongest the first time and is likely demoralized and decimated now. To even have a poor chance, RWDSU needs to stretch out the timetable for a new election, because this would be a complete rebuild.
The longer it lingers, the more that Amazon is centerstage as a difficult and dodgy employer. That doesn’t hurt its stock, nor its profits since the company has become something close to a public utility in the continuing, endless pandemic, but the company may want to lance the boil and have it done. RWDSU’s handling of this campaign has been under steady and relentless scrutiny since its loss. Stuart Applebaum, its president, told the Times that it might take “two or three elections” to win, making it sound like he’s doubling down on a classic-NLRB election approach as their continuing strategy, even as other unions and organizers looking at the same set of factors are suggesting alternatives. Applebaum’s comments also might be classified as giddy optimism, since nothing in evidence thus far has changed the odds in favor of the union.
This fight is a long way from over, but this round goes to the union, for what it’s worth.