Amazon why are you so afraid of collective bargaining? NLRB ELECTION DO OVER

When it comes to Unions I tend to be agnostic but when it comes to behemoths versus the average worker -spoiler I’ll always side with the worker. Amazon over played their hand & NLRB smacked it

Full disclosure I’m not pro/anti Union — in generally I think Unions can and often do the “right thing for workers” and that collective bargaining means decent pay/benefits for and from decent workers. Even with my time I Twitter I would occasionally say “this NLRB case” is worth keeping your eye on.

For those unaware of what exactly the National Labor Relations Board (NLRB) is and what they do — They are an independent federal agency thats “vested” with the power to protect employees rights “to organize” and “determine whether to have unions as their bargaining representative“ (see Title 29, Chapter 7, Subchapter II, United States Code) below is a brief summary of what they do;

• Conduct Elections —If you wish to form or join a union, or decertify an existing union, you may file an election petition. Please contact an information officer at your nearest Regional Office for assistance.

• Investigate Charges —If you believe your NLRA rights have been violated, you may file a charge against an employer or a labor organization. You can find charge forms here. Please contact an information officer at your nearest Regional Office for assistance.

• Facilitate settlements —The NLRB encourages parties to resolve cases by settlement rather than litigation whenever possible. In fact, more than 90% of meritorious unfair labor practice cases are settled by agreement at some point in the process, either through a Board settlement or a private agreement. Board Settlement Agreements

• Decide Cases —When complaints of Unfair Labor Practices issued by regional directors do not lead to settlement, they typically result in a hearing before an NLRB Administrative Law Judge. As in any court proceeding, both parties prepare arguments and present evidence, witnesses, and experts.

• Enforce Orders —In reviewing cases, the Circuit Courts evaluate the factual and legal basis for the Board’s Order and decide, after briefing or oral argument, whether to enter a judicial decree commanding obedience to the Order. The Court may also enter an Order on the grounds that the responding party failed to oppose or had no legal basis to oppose the Board’s action.

• National Labor Relations Board Rulemaking - As part of its ongoing efforts to more effectively administer the National Labor Relations Act and to further the purposes of the Act, the National Labor Relations Board is engaging in rulemaking in a number of important areas.

Which now brings us to the NLBR August 2, 2021 Decision in the;

AMAZON.COM SERVICES LLC NLRB Case No 10-RC-269250

https://apps.nlrb.gov/link/document.aspx/09031d4583484780

I also recommend you read this NBC New article from April 2021 -regarding Amazon’s Bessemer fulfillment plant, which opened in March 2020. Several workers voiced concerns about Amazon’s lack of PPE, Safety Guidelines but the April 2021 article explains that the “Amazon employees voted”

…the Retail, Wholesale and Department Store Union, or RWDSU, the union seeking to represent the 5,800 workers in Bessemer, said it would challenge the vote by filing unfair labor practice charges with the National Labor Relations Board. It will allege that Amazon broke the law with some of its anti-union activity in the run-up to the election.

And then Amazon went on the offensive. Amazon’s Blog Post post after the vote commencement of voting concluded. Their blog post largely disputed what workers said were unsafe working conditions and that Unionizing would strengthen workers rights

"It’s easy to predict the union will say that Amazon won this election because we intimidated employees, but that’s not true," the post read. "Our employees heard far more anti-Amazon messages from the union, policymakers, and media outlets than they heard from us."

August 2, 2021 NLRB Decision NEW ELECTION

Link to NLRB Decision 👇🏻https://apps.nlrb.gov/link/document.aspx/09031d4583484780
Also ProTip NLRB decisions format tend to be very different that typical Court Rulings, meaning the NLRB issues a conclusion in the subsections and the “final” conclusion is largely based on the authority vested in the NLRB. I hope that makes sense but figured I’d give you a preemptive explanation. Because most don’t know the formatting

Captive Audience Meetings -Phase I

The NLRB held that Amazon used these “captive audience meetings” to improperly influence workers at the plant. This was effectuated by Amazon’s multiphase plan to essentially improperly influence each worker’s vote concerning unionization..

Get Out The Vote - Phase II

If you think I’m being entirely critical of Amazon —then clearly you completely overlooked my years long Twitter Thread circa 2019 thru 2021 where I explicitly stated that the Trump Administration and Former Defense Secretary Esper did Amazon wrong. Weird how in July 2021 exactly what I predicted in February 2019 thru November 2019 would happen actually did happened. So no I’m not picking on Amazon —I’m merely reporting the recently released NLRB decision on the April 2021 election at Amazon’s Bessemer fulfillment plant

but the NLRB didn’t hold back …and to the NLRB credit they also acknowledged that the Union also used similar messaging to it’s potential members:

…Employer utilized a) text messaging to send texts to associates with registered cell phone numbers; b) “installments,” or written flyers, mounted on bathroom stalls at the facility; c) visual messaging on “acid boards”, or rather television screens located throughout the facility; d) written messages sent through the Amazon A-to-Z app for employees, a cellular phone based application for employees who opt to download said program; e) emails to the employees called

And even after the money and messaging by both Amazon and the Union the voter turn out was abysmal… the NLRB also notes that the record is largely silent on the cause and/or reason for the low voter turnout. This is actually enumerated in footnote 4, which reads;

The Tally reflects that there were 5,867 eligible voters, 76 ballots were determined to be void, and 2,536 valid ballots were cast, while another 505 ballots were challenged.

On-site USPS Ballot Labled “high priority”

Even before the election commenced, the Union stated that Amazon’s decision to place a USPS mailbox (in view of security cameras) at the entrance of the Bessemer fulfillment plant was an unfair advantage for Amazon. The Union stated that workers would feel like their employer was monitoring who was and who wasn’t casting ballots.

To be clear because of COVID-19 the parties mutually agreed (the Union and Amazon) to use “mail-in ballots” - the Union not only filed a challenge with the NLRB but they were also pretty vocal. Why? The Union argued that Amazon “sent messages to workers encouraging them to vote on-site using these boxes” and this then created a “perception that the mailbox on-site was the official polling site” —the Union also stated that Amazon would know who voted and who didn’t and that information would be known by Amazon’s plant management. Ergo uneven playing field

...it is clear that Amazon, not USPS, selected the site…

…..the location of the mailbox, it is clear that Amazon, not USPS, selected the situs of the CBU. According to Miguel Harris, a BHM1 procurement analyst, he initially determined there were three potential locations for the CBU, all located in “heavy traffic areas” on the main walkway in front of the main entrance to the facility. When USPS Manager Stephanie Johnson first came to BHM1 on February 3, Harris presented the three locations, and Johnson agreed to install the box at its current location, as described below. The very next day, on February 4, 2020, USPS agents installed the CBU in the location proposed by the Employer.

…Harris recalled that there were some employees in the parking area during a break who would have seen the USPS employees installing the box. However, none of the employees was identified, nor was any testimony elicited regarding the number of employees were on break who might have witnessed the USPS officials installing the unmarked CBU.

Ever wonder what a conclusory statement is? Well I now refer you to page 15 -specifically what I highlighted and the footnotes. To be clear the Union did state that Amazon management was given two sets of keys to the USPC CBU (the mailbox) but nothing in either witness testimony or internal Amazon communications suggest that Amazon improperly accessed the CBU. But the Union is correct that “Amazon could have” —the record shows Amazon “did NOT” —this is a classic opposing facts can simultaneously be true…

Congratulations Amazon NLRB says election do-over

The Board will set aside an election when the alleged objectionable conduct "so interfered with the necessary 'laboratory conditions' as to prevent the employees' expression of a free choice in the election." Dairyland USA Corp., 347 NLRB 310, 313 (2006), enfd. sub nom. NLRB v. Food & Commercial Workers Local 348-S, 273 Fed. Appx. 40 (2d Cir. 2008). The Board employs an objective test to determine if "the conduct of a party to an election has the tendency to interfere with the employees' freedom of choice." Cambridge Tool & Mfg. Co., 316 NLRB 716 (1995).

Amazon’s Anti-Union Captive Audience Meetings..

This is really and I mean really bad for Amazon, who hired a 3rd party branding/messaging consulting firm and based on the NLRB Decision. It is obvious that Amazon’s “campaign” was inherently anti-union but and this is a big BUT -Amazon’s Management and Consultants falsely telling employees that “if you unionize your pay and benefits will be dramatically lowered” this is what you’d call low-key race-baiting and micro-economic aggression

…employee Daryll Richardson testified that at a meeting he attended employees were told that if the Union came in employees’ pay would “drop.” Employee Kristina Bell, testified that during a meeting she attended the speaker said that employees’, “pay could definitely decrease, and you could lose some of your benefits.” Frederick Brewer recalled that the Employer’s agents said that if the employees selected the Union, “the Union would take away all that stuff we had: the benefits, money, and everything. We would -- we would lose all that stuff.”

Emmitt Ashford testified that employees were told that “there’s just a lot of things that [employees] could lose,” and that the Employer “insinuated” that it would “potentially try to take away the things we already had.” Employee Serena Wallace testified that employees were told that if the Union prevailed, “all your benefits and stuff will deplete because they don’t have to accept anything that the Union had offered.” On cross examination, most of the Union witnesses, including Ashford, Wallace, Bell, and Woods acknowledged that during the meeting, the presenters stated that during negotiations wages and benefits could improve, stay the same, or decrease.

Do you know what nine words make most firms truly shake in their boots? (Also the yellow highlights are not mine - they are the NLRB)

“..I will, therefore, rely on the Power Point messages..”

Like I said the NLRB decision(s) format requires you to read the whole decision because the embed their determination(s) within each Objection and they deviate from typical Court Rulings, that typically have a summary/conclusion at the end of the paper…nope NLRB embeds it in their papers… for example page 24

Amazon’s conduct NLRB orders new election

I find it is the aggregate effect of the mailbox that affected the results of the election. It is the totality of the circumstances created by the installation of the mailbox absent any authorization from the Board. It was the solicitation that employees use the CBU, a perceived benefit to employees. And, it was the installation of the CBU, at a location that reasonably appeared to be within the viewing field of the Employer’s multiple security surveillance cameras that so tainted the election that a second election is necessary. Regardless of whether the Employer succeeded in defeating the Union in a landslide, the Employer’s conduct herein so undermined the laboratory conditions necessary to ensure a free and fair election, a re-run election is necessary.

Over 2,000 employees did not vote in the election, a sufficient number to affect the results of the election. While it is unknown why these employees refrained from voting, there is, at the very least, the possibility that the Employer’s misconduct influenced some of these 2,000 eligible voters.

You can read the full NLRB 61 page decision here or you can read the whole case file for AMAZON.COM SERVICES LLC NLRB Case No 10-RC-269250 here.

If you have any questions please feel free to leave a comment, I’ll respond as my schedule permits. —Filey