It wasn’t so much a matter of if as a matter of when. On November 29, 2021, an NLRB regional director ordered a new union election at an Amazon warehouse in Bessemer, Alabama. As this blog previously reported, a hearing officer issued a report on objections filed by Union in August 2021. In that report, the hearing officer recommended that the April 2021 election results be set aside and a new election held. The NLRB has now officially ordered the new election, undoing Amazon’s victory over the Union.
In her decision, NLRB Regional Director Lisa Henderson explained that by installing a postal mailbox outside the warehouse entrance, Amazon “essentially hijacked the [electoral] process and gave a strong impression that it controlled the process. This dangerous and improper message to employees destroys trust in the Board’s processes and in the credibility of election results.” More specifically, Henderson found it problematic that (1) Amazon encouraged employees to use the mailbox to cast their union ballots; (2) Amazon surrounded the mailbox with a tent, from which it hung a banner with its campaign slogan; and (3) the mailbox was located in a space where employees could reasonably believe that they were being surveilled.
The Regional Director also found merit in another challenge to Amazon’s conduct. During the campaign, Amazon set out “vote no” materials (such as pins, lanyard tags, and rearview mirror tags) after mandatory employee meetings. Employees could voluntarily collect these items. These “vote no” materials were placed on tables near exit doors where Amazon human resources representatives were stationed. Thus, Amazon human resources representatives would be able to see which employees took “vote no” materials and which did not--and, more importantly, the employees would see that they were being observed by Amazon human resources representatives. By presenting employees with the “open and observable choice to pick up or not pick up” the “vote no” materials, the Regional Director held that Amazon improperly “polled” employees.
As this blog noted, Amazon enjoyed a lopsided victory over the Retail, Wholesale and Department Store Union (RWDSU) in April 2021: 1,798 employees voted against the Union and 738 voted for the Union. Although it seemed that Amazon had defeated the labor drive, the RWDSU was quick to challenge the election results, alleging illegal activities and deception on the part of Amazon. This challenge led to the hearing officer’s August report and recommendation and, now, the November order for a new election.
Stuart Appelbaum, President of the RWDSU, doubled down on his previous allegations of misconduct in a statement. “Today’s decision,” Appelbaum wrote, “confirms what we were saying all along--that Amazon’s intimidation and interference prevented workers from having a fair say in whether they wanted a union in their workplace--and as the Regional Director has indicated, that is both unacceptable and illegal. Amazon workers deserve to have a voice at work, which can only come from a union.”
In a statement released to The Washington Post (also owned by Amazon founder, Jeff Bezos), Amazon criticized the NLRB decision, saying that its employees, “have always had the choice of whether or not to join a union, and they overwhelmingly chose not to join the RWDSU earlier this year. It’s disappointing that the NLRB has now decided that those votes shouldn’t count.”
This result should not come as a surprise to those labor professionals who have been paying attention. Indeed, it does not seem that the result came as a surprise to Amazon, as Amazon has reportedly already been requiring its employees to attend meetings about unions in anticipation of a second election. The decision is a good reminder that every employer confronted with union organizing activity should retain counsel skilled in the area to help navigate the sometimes rough waters of the NLRA.
By Nelson Cary and Alex Ehler