Amazon is facing more official scrutiny over its actions leading up to a mail-ballot election this spring on whether workers at its Bessemer, Ala., facility could join a union. But a potential redo election could still face significant procedural and practical obstacles, labor experts said.
When the warehouse workers seeking to organize were trounced in a widely watched tally in April that showed some two-thirds of the votes go against unionizing, the Retail, Wholesale and Department Store Union had amplified its accusations against Amazon.
This week, a National Labor Relations Board officer’s report appeared to vindicate some of the union’s accusations that Amazon had improperly polled employees to gauge support for the union, and also that the retailer had gotten the U.S. Postal Service to place a mailbox near the entrance of the warehouse in view of surveillance cameras. The hearing officer’s report stated that such alleged actions justified the union’s call for a second election.
“The employer’s conduct in causing this generic mail receptacle to be installed usurped the National Labor Relations Board’s exclusive role in administering union elections,” the NLRB hearing officer wrote in the report. “Notwithstanding the union’s substantial margin of defeat, the employer’s unilateral decision to create, for all intents and purposes, an onsite collection box for NLRB ballots, destroyed the laboratory conditions and justifies a second election.”
The report paves the way for a procedural fight over next steps, and Amazon has already indicated that it plans to appeal.
“Our employees had a chance to be heard during a noisy time when all types of voices were weighing into the national debate, and at the end of the day, they voted overwhelmingly in favor of a direct connection with their managers and the company,” an Amazon representative said in a statement. “Their voice should be heard above all else, and we plan to appeal to ensure that happens.”
The NLRB, which presides over union elections, generally tries to enforce the so-called “laboratory conditions” standard for such votes. The idea is to ensure the confidentiality of votes, and to preserve a sense among voting employees that their votes won’t be tallied or overseen in any way by their employer, labor experts said.
The agency’s goal is to safeguard against potential surveillance by employers, or even the impression of surveillance, said Ruben Garcia, professor of law and codirector of the workplace law program at the University of Nevada, Las Vegas, School of Law.
“If an employer is seeking to find out who supports the union, then that is surveillance, and it can have a chilling effect on the employees’ support for the union,” he said.
“There’s also another principle here, and that is the idea that the government is the one that’s supposed to count the ballots and conduct the election,” he added. “So sometimes, in past cases you’ve had an employer basically give the impression that the employer is the one counting the ballots and deciding which votes count and everything.
“This mailbox, I think, can give employees that impression,” he said. “So there is past authority for this — not exactly like this — but basically, past cases that have found a problem when something like this seems to be possibly within the employer’s control.”
The NLRB hearing officer’s findings aren’t necessarily unusual, but despite its support for a reelection, the path to getting to another vote is paved with appeals and challenges. The NLRB said this week that the parties in the case will be able to object to findings in the report, which will then move the review up to the regional director in the case, who would then issue their decision, a process that could take “several weeks,” according to the agency.
Despite an apparent point of advantage for Amazon workers seeking to organize, the hurdles to a successful second election are significant, given the practical difficulties of organizing a second time, labor experts said. Union representatives must generally engage with workers outside of the premises of work, and only when workers are off the clock, said Julius Getman, chair emeritus at the University of Texas at Austin School of Law.
“The union has to get the workers whenever it can, which is when they’re not at work,” he said. “Mechanically, it’s much more difficult for the union to present its case to the workers, and that’s [what happens when] the unions do badly, more than anything else — employers have a major advantage in being able to get their case heard by the workers.”