Vice President, Labor Policy
August 26, 2021
Back in June, this blog discussed a seemingly innocuous remark by the then-acting General Counsel of the National Labor Relations Board (NLRB), Peter Sung Ohr, as he discussed the representation election at Amazon’s Bessemer, Alabama, facility during an interview with Bloomberg News. In the interview, Ohr commented about numerous complaints filed by the union involved, which had lost the election, and he noted that “there may be dozens that are filed, but it only requires one objection to be upheld to re-run the election.”
Fast forward a couple of months, and almost as if on cue, the NLRB may be on the verge of giving the union—the Retail, Wholesale and Department Store Union (RWDSU)—the re-run it is asking for. Why the NLRB seems intent on doing so or the union thinks the outcome would be any different is anyone’s guess.
Earlier this month, an NLRB hearing officer issued a 60-page report recommending that the election be redone based on the RWDSU’s allegations that Amazon had engaged in “objectionable conduct,” notwithstanding the fact that the RWDSU lost the election by a vote of 1,798 to 738, which one might call “decisive.”
More specifically, the RWDSU alleged that the company had “interfered with the laboratory conditions necessary to conduct a fair election by causing a mailbox to be installed on its premises, by polling employees, by threatening employees, by hiring additional police, and by interfering with the Union’s access to voters by causing the county to alter the timing of certain traffic lights.”
The hearing examiner’s tome outlined the litany of 23 specific complaints in greater detail, but she found little merit in most of them. Instead, the bulk of her recommendation was based in one way or another on the fact that the United States Postal Service (USPS) had installed a mailbox on the premises of Amazon’s facility at its request.
The purpose of the mailbox was to facilitate employees’ ability to vote because the NLRB had directed a mail ballot election rather than a traditional in-person election with a polling site controlled by an NLRB agent. As one would expect, access to the mailbox’s outgoing mail was limited to the USPS, and Amazon put up a tent around the mailbox to ensure the privacy of anyone seeking to use it to cast their vote.
While the hearing examiner stated that “[n]o evidence was presented that established that any entity, other than the USPS, had actual control over the contents of the outgoing mailbox,” she nevertheless concluded that “it is the aggregate effect of the mailbox that affected the results of the election.”
The rationale for that conclusion was based on the fact that Amazon sought to have the mailbox installed in the first place and that its security cameras had the mailbox—or, rather, the tent covering it—in their field of view, despite the fact that the company specifically prohibited managers from reviewing the surveillance camera footage during the election period. The report did not explain, however, how those things managed to convince nearly 1,800 workers to vote against the union, but that’s probably because those things didn’t.
It’s not much of a secret that labor unions don’t like to lose representation elections. What is unfortunate is that the NLRB will employ whatever flimsy logic it can to make sure that they don’t. One hopes that Amazon’s employees will get the final word regardless and that the RWDSU will understand that no means no.