Good Lawyering Keeps Union Hopes Alive at Amazon

NLRB elections are a minefield for unions. But the RWDSU's attorneys seem up for the challenge.

Merry Christmas, all. This holiday edition post is intentionally short, as I wanted to merely highlight some legal craftsmanship in a pivotal union election.

As most are likely aware, workers affiliated with the Retail, Wholesale and Department Store Union in Amazon’s Bessemer, Alabama facility have petitioned the National Labor Relations Board for the first plant-wide representation election in the company’s history. That process is currently churning through the NLRB’s election machinery. Amazon, with all of the resources in the world at its disposal, hired a former Republican Board member, Harry Johnson, to quarterback its anti-union legal campaign on the shop floor and before the Labor Board.

Johnson, a veteran of this process (along with his second chair, a former NLRB field attorney), threw the first wrench he could in the union’s election efforts by attempting to inflate the bargaining unit. The RWDSU had proposed a bargaining unit of roughly 1,500 frontline facility workers, but Johnson opened the pre-election hearing by requesting a 5,700-employee unit, likely constituting every living, breathing soul in the Bessemer plant. This is a classic stalling tactic, meant to drag the election into 2021 by examining countless witnesses regarding their work duties to justify their inclusion in the voting pool and, more importantly, give as much as time as possible to management to continue crusading against the union.

Why does the RWDSU oppose a wall-to-wall unit (besides the clear filibustering on display here)? Because it’s virtually impossible to organize a massive facility like this across countless different job classifications under current Board law, especially with any sense of secrecy. A huge portion of this 5,700 number is likely comprised of seasonal and temporary employees, which inherently are difficult to organize due to their fleeting status in the workplace. Any increase to the bargaining unit thus risks diluting the organizational efforts already undertaken by the union among full-time workers.

With time always operating against the union, the Alabama attorneys representing it are thus forced to engage in a delicate balancing act. Do you spend weeks rebutting Johnson’s bargaining-unit argument on its merits through countless hours of testimony and cross-examination, or do you concede to some inflation of the bargaining unit and risk weakening the “yes” vote? The petition is already over a month old (dating back to November 20), so a decision had to be made fast.

The union lawyers ultimately agreed to include 769 seasonal employees in the bargaining unit to try and get the hearing moving. A 50 percent increase in eligible voters has to sting, but the RWDSU knew it had an unlikely ally helping it: the COVID-19 crisis.

Since the pandemic’s emergence, Regional Directors of the NLRB have almost universally ordered elections to be conducted by mail rather than the normal in-person voting. While we do not have solid data suggesting that mail voting will inherently favor unions, employers have overwhelmingly disapproved of this method and asked in vain for restoration of the normal in-person standard. The prevailing assumption among labor experts is that mail voting decreases turnout among those who do not feel strongly one way or the other about unionization, who are traditionally the types of voters that could be swayed to vote for the non-union status quo by employer coercion or simple lethargy. This describes seasonal employees to a tee. Meanwhile, the workers who will actually put forth effort into mailing their votes are likely to have stronger opinions on the matter, and that favors those who have been won over by the union’s months (perhaps years) of internal organizing. While Amazon has been virulently opposed to unions for years now, the Bessemer plant’s management has likely only made such messages explicit and personalized for a few weeks now.

Again, I do not know if these assumptions are backed by 2020 data, but Amazon is certainly acting like this a law of nature. The company has offered to pay for Labor Board employees’ accommodations as part of its Hail-Mary request for in-person voting, prompting a response from the union’s lawyers that they are “not going to let Amazon buy a city.” (The request is also almost certainly unlawful; the NLRB is required to pay its own way for its Board Agents.)   

The RWDSU is thus exchanging a fattened bargaining unit for a shortened hearing and a speedy election date. A mail-order election is almost sure to follow given the Bessemer area’s high infection rate. I would expect an election date ordered sometime in mid-to-late January, thus bringing the total time elapsed from petition to election around 60 days. Given the Trump Board’s deliberate intent to prolong the election timeline to favor employers, this would be a relatively quick process.

I do not know if the union will be victorious, but I think their lawyers gave them the best chance possible in the face of stiff competition. They did not take the company’s bait and remained committed to not letting the clock be used as a cudgel. I look forward to watching them navigate the rest of this legal minefield.