Vice President, Labor Policy, U.S. Chamber of Commerce
June 22, 2021
Occasionally, a random comment can reveal a little bit more perhaps than the one who made it intended. That could be said of a recent statement by the acting General Counsel of the National Labor Relations Board (NLRB), Peter Sung Ohr, as he discussed the ongoing organizing campaign at Amazon’s Bessemer, Alabama, facility.
As this blog recounted not long ago, the Retail, Wholesale and Department Store Union (RWDSU) has been engaged in a so-far fruitless effort to organize the employees at the aforementioned Amazon operation in Alabama. Like other unions, the RWDSU apparently hopes to make inroads in the south as a way to reverse the declinein union membership that has been happening since the mid-1950s.
Unfortunately for the RWDSU, the Amazon employees had a say in the matter, and when asked if they wanted to be represented by the union, they resoundingly said “no” by voting against it in April. After tallying 3,051 ballots from approximately 5,876 eligible voters, the RWDSU managed to earn 738 votes in favor of representation versus 1,798 against.
Following the election loss, union officials immediately cried foul, alleging that Amazon had engaged in any manner of nefarious activities that affected the vote—a common tactic by unions after a defeat (see the failed vote at a Volkswagen plant in Tennessee for another example). The post-election allegations are more than just vague gripes, though, as labor officials hope the charges they concocted will be enough for the NLRB to rerun the election.
Cue Peter Sung Ohr. In a reportedly wide-ranging interview with Bloomberg News, he touched upon the Amazon election and the RWDSU’s numerous complaints and noted that “there may be dozens that are filed, but it only requires one objection to be upheld to re-run the election.”
Time will tell as far as the fate of the RWDSU’s allegations is concerned, but more importantly Ohr’s comment underscores one of the many serious flaws with the Protecting the Right to Organize (PRO) Act. Namely, that all it could take is one questionable finding of employer interference by the NLRB to overturn an election—in this case, a loss by the union of over 2:1.
While it is not likely a point Ohr had in mind, it is one worth noting because the PRO Act could force union representation on individuals who just voted against it through a “stealth” card check procedure. The bill states if the NLRB finds “that the employer has committed a violation … or otherwise interfered with a fair election,” the employer must disprove the Board’s finding. If it cannot do so, the NLRB would be required to set aside the election results and certify the union if the union presents signed authorization cards collected up to a year prior to the election.
As Ohr noted, if just one allegation by the union is upheld, the NLRB would be compelled to overturn the vote if the union collects enough cards, which is plenty of incentive for a union to pressure workers into signing them—even if they do not realize doing so could later overturn their privately-cast final vote. Given the tenacity with which organizers have been known to operate, it is not hard to imagine the mischief this provision could cause. That is probably not an accident.