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Union Defeat at Amazon Sparks the Question: What’s Next?

EverythingHR Staff | 04/14/2021 | Blog, Featured

The votes have been counted in the Amazon union election in Bessemer, Alabama, but the vote tally doesn’t mean the matter is absolutely settled. Almost immediately after the union defeat was announced on April 9, the union said it would take the fight to the National Labor Relations Board (NLRB).

More than 5,800 employees at the Amazon fulfillment center just outside Birmingham were eligible to vote on whether they would be represented by the Retail, Wholesale and Department Store Union (RWDSU). The election was conducted by mail, and workers had nearly two months to send in their ballots. The deadline to have votes in was March 29.

Just over half the workers eligible to vote actually cast ballots. The NLRB announced the following results: 1,798 against the union, 738 in favor of the union, 505 challenged ballots, and 76 void ballots. That brings the number of valid ballots to 3,041. Since there weren’t enough challenged ballots to affect the outcome of the election, there was no effort to resolve the issues with those ballots.

The vote’s outcome was a surprise to many observers, including Richard I. Lehr, an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C. in Birmingham. “I expected a closer vote. Based on comments from individuals I know who worked on the campaign for the union and employer, both sides expected a close vote. Also, generally, a lower turnout favors the union, but that was not the case here.”

Union’s possible options

As for what’s next, Lehr says the RWDSU will try to convince the NLRB to rerun the election, but typically, employer victory margins are even greater in rerun elections.

Lehr says the union may try to organize a smaller group of Amazon employees. “Statistically, the smaller the group, the greater the likelihood of union success,” he says. That approach was used at Boeing in South Carolina, where in February 2017 employees rejected unionization by a big margin.

Fourteen months later, the union won an election at the same location to represent a much smaller group of flight line maintenance employees. “That outcome is in litigation, but it is an example of an approach the union may consider,” Lehr says.

The RWDSU also could try some kind of national drive in conjunction with advocacy groups such as Jobs to Move America or Black Lives Matter, Lehr says. “This would cost the union a lot of money and time, and whether it could be successful is speculative,” he says, pointing out the union did not target Amazon. Instead, Amazon employees went to the union. And they turned to the union quickly. The facility opened in April 2020 and by November, they had collected more than 3,000 signatures to petition for a union election.

Tim Lindsay, an attorney with Butler Snow LLP in Ridgeland, Mississippi, says he sees the election result reflecting “the fallacy of card check recognition” that unions often prefer over secret-ballot elections. “Even though the union purportedly obtained over 3,000 signatures, the vote through the secret ballot without fear of pressure, intimidation, or outright threats was overwhelmingly against the union,” he says.

Lindsay points out that organizing efforts in the South have been difficult for unions. “In my opinion, this victory for Amazon signals that employees in the South are not ready to buy into union philosophy even under today’s political environment,” he says.

Gary S. Fealk, an attorney with Bodman PLC in Troy, Michigan, says the RWDSU may try again but will need to wait a year before filing another petition for an election. “I would guess, however, that if the union is not able to obtain a new election as a result of its challenges, it will be a long time before they attempt to organize the Alabama facility again.”

“Quite simply, the union failed to convince a majority of the employees that there was a need for a union,” Fealk says, adding the RWDSU may argue the employees were “threatened,” but the union will have the burden of proving any claims in an NLRB proceeding to obtain a new election.

Setbacks and heart attacks

The Bessemer campaign attracted national attention, including support from President Joe Biden, senators, and celebrities. The campaign also was linked to the Black Lives Matter movement and the national discussion about pay equity.

“This was a highly publicized organizational effort, and the results were not close,” Fealk says. “Employers may point to the result to back their opinion that unions are outdated and employees do not want them. Unions may claim that the election rules are not fair to them and put pressure on sympathetic legislators to propose amendments to the National Labor Relations Act.”

Lehr said that although most of the employees at the facility are black, “the push about equity and social justice based on race did not resonate at the workplace.” But the fact that a union election occurred just months after the facility opened “means there was something wrong, some disconnect, in company relationships with employees.”

“An overwhelming election win, such as Amazon’s, is not a statement that all is well,” Lehr says. “Rather, it is the workplace equivalent of a heart attack.” Amazon now has a chance to address why the campaign occurred.

“Just as if an individual does not make changes after a heart attack, the risk of a more severe one increases, so the case with an employer that views an election victory as validation of the status quo,” Lehr says.

Union’s complaints

In a statement after the election result was announced, the RWDSU said it was asking for an NLRB hearing to determine if Amazon “created an atmosphere of confusion, coercion and/or fear of reprisals and thus interfered with the employees’ freedom of choice.”

The RWDSU also said it would present evidence supporting an unfair labor practice complaint against Amazon for “unlawfully interfering with the protected right of employees to engage in union activity.”

One complaint the union voiced concerns a U.S. Postal Service (USPS) mailbox Amazon reportedly requested be installed at the facility. The union claims the NLRB denied a request from Amazon for a drop box on its property but then Amazon worked with the USPS to have a mailbox installed. The RWDSU called that an intimidation tactic.

Amazon statement

Amazon countered the union’s complaints with a statement thanking the Bessemer facility’s workers for participating in the election. “It’s easy to predict the union will say that Amazon won this election because we intimidated employees, but that’s not true,” the company’s statement said. “Our employees heard far more anti-Amazon messages from the union, policymakers, and media outlets than they heard from us.”

Amazon’s statement also included a plea for lawmakers to pass a law ensuring a higher minimum wage. The company pays at least $15 an hour, more than twice the federal minimum wage of $7.25 an hour.

“We welcome the opportunity to sit down and share ideas with any policymaker who wants to pass laws ensuring that all workers in the U.S. are guaranteed at least $15 an hour, health care from day one, and other strong benefits,” the Amazon statement said.

Article courtesy of content partner BLR.  The author, Tammy Binford, writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.