Loyola University Chicago School of Law, JD 2022
On Friday, April 9th, Amazon successfully withstood the largest push for unionization yet for its U.S. workers when its Bessemer, Ala. warehouse employees voted ‘no’ to unionizing. The final tally of ballots showed only 738 votes in favor of joining the Retail, Wholesale and Department Store Union (“RWDSU”) compared to 1,798 votes against it. After a tally, any party may file objections to the conduct of the election or to conduct affecting the election’s results—and the RWDSU is doing just that.
After Friday’s election results were revealed, the RWDSU immediately announced its intent to file Objections to the conduct of the election and related Unfair Labor Practice charges (“ULPs”), with the National Labor Relations Board (“NLRB”). The RWDSU contends that Amazon interfered with the rights of its Bessemer, Ala. warehouse workers to vote in a free and fair election, a right guaranteed under the National Labor Relations Act (“the Act”).
The Act was originally passed in 1935 to protect employee and employer rights and to reduce labor and management practices that are harmful to workers, businesses, and the economy. Under the Act, it is unlawful for employers to interfere with their employees’ right to unionize.
Sections 7 and 8(a)(1) work together to define what constitutes ‘interference’ with employee rights. Section 7 guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid protection,” as well as the right “to refrain from any or all such activities.” Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act.”
“The most aggressive anti-union campaign I’ve seen”
The RWDSU contends that it can prove that Amazon created an “atmosphere of confusion, coercion, and fear of reprisals” and therefore interfered with its employees’ freedom of choice in the union election. In the months leading up to the Tally, Amazon launched a series of counter-union efforts including text campaigns compelling workers to vote “NO” and an anti-union website (which has since been shut down). The company’s anti-union efforts also permeated the workplace. Amazon blanketed parts of the warehouse (even bathroom stalls) with banners and fliers that read “Do it without dues,” attempting to convince employees that the union was only interested in collecting workers’ hard-earned money.
Workers were pulled into one-on-one meetings on the warehouse floor and attended mandatory “information sessions” where Amazon boasted about how it already meets its employees’ needs through a $15 starting pay, generous health care, and other benefits. When asked about its anti-union efforts, Amazon claimed it was merely “providing education that helps employees understand the facts of joining a union.” However, Amazon’s warnings about dues seemed more deceitful than informational given the fact that Alabama is a right-to-work state, meaning that workers who didn’t support the union would not have been required to join or pay union dues.
Is Amazon in violation?
Some of Amazon’s anti-union efforts seem more improper than others under the Act. Section 8(a)(1) gives several examples of company conduct that would be considered unlawful under Section 7. For example, an employer may not convey the message that selecting a union would be futile, but Amazon’s “Do it without dues” slogan appears to suggest just that. It is also generally illegal for companies to poll employees about the extent of their union support (unless specific safeguards are followed), to explicitly observe employees’ union activities, or even to create the impression that the company is spying on union activities.
However, employees have spoken out about feeling like they were under surveillance during the election. One worker said that after she asked whether paying union was dues mandatory at an anti-union meeting, an Amazon official asked to photograph her badge. She felt like this was an intimidation tactic meant to demonstrate possible consequences for bringing up such questions. The same employee said that Amazon managers regularly checked in with employees about whether they had voted yet.
Similar concerns around surveillance were ignited when a mailbox was installed inside an Amazon tent within the facility. Amazon claimed that it was installed to make voting “convenient, safe, and private,” but many employees wondered whether Amazon was actually trying to monitor the vote. Further, a rumor had spread among employees that Amazon would simply close the Bessemer warehouse if the workers had unionized. Amazon representatives dismissed this as speculation, but the company has engaged in the same or similar behavior in the past. Threatening employees with adverse consequences such as closing the workplace is also explicitly prohibited under the Act.
Based on the Amazon’s strategic response to calls for the union vote and carefully constructed anti-union messages, it is clear that Amazon will not surrender to union efforts any time soon. However, labor activists argue that what happened in Bessemer has ignited a movement in favor of shifting the balance of power from employer to employee. As Amazon is not alone in squashing unionization efforts, the Bessemer election serves as a highly-publicized example of how it is almost impossible for workers to unionize under current labor law. In fact, data show that many U.S. employers are willing to use illegal tactics to frustrate workers’ rights, and that they are charged with doing this in 41.5% of all union election campaigns. Labor advocates are hopeful that this high-profile fight will incite support for broader change.