If at First You Don’t Succeed, Have the Labor Board Intercede

Story by Sean Redmond, Labor Policy, U.S. Chamber of Commerce

It may be a new year, but some things don’t seem to change much, such as the ongoing antics of the National Labor Relations Board (NLRB) in assisting organizing campaigns that fail miserably. Take, for instance, Amazon, the fifth-largest company in the world that reportedly added 500,000 job opportunities in 2020, over 400,000 of which were in the United States..

As this blog chronicled last April, the results of a union representation election at Amazon’s distribution facility in Bessemer, Ala., did not exactly turn out the way the union wanted, which is to say the union lost decisively. Indeed, after tallying 3,051 ballots from 5,876 eligible voters, the Retail, Wholesale and Department Store Union (RWDSU) had 738 in favor versus 1,798 against it. Another 505 challenged ballots were never reviewed given the wide margin of defeat.

One might think that a lopsided 2:1 outcome rejecting the RWDSU would be enough to convince the union’s top brass that it might be better to seek greener pastures, so to speak, but that would belie the union tradition of refusing to take “no” for an answer. Instead, union officials groused about their defeat and vowed to keep up their campaign against Amazon, and so they did.

A key part of the union’s strategy included lobbing a litany of dubious charges against Amazon with the NLRB, hoping perhaps one would stick and force a new election to be held.  One of the union’s chief complaints included the fact that the U.S. Postal Service apparently placed a mailbox in front of the Amazon facility. That fact allegedly sent a signal to employees that Amazon was involved with running the election, which is more or less laughable.

Nevertheless, as the then-acting General Counsel noted about scattershot charges last June, “there may be dozens that are filed, but it only requires one objection to be upheld to re-run the election.” An NLRB hearing officer last August took heed of that observation and issued a 60-page report recommending that the election be redone based on the RWDSU’s allegations that Amazon had engaged in “objectionable conduct” because of the mailbox, all while finding little credence in most of the union’s charges otherwise.

On November 29, an NLRB Regional Director issued a decision supporting the conclusion of the hearing officer that the offending mailbox had tainted the election, and it became a matter of time as to when that rerun would occur.

That open question was answered on January 11, when the NLRB announced that the do-over election would take place beginning on February 4 by mail, and ballots will be counted on March 28 “by way of videoconference and will continue on consecutive business days until completed,” according to the announcement. Interestingly, the announcement did not include a deadline for ballots to be received, so it will be noteworthy if ballots that come in after counting has commenced are included. Because nothing could go wrong with that.

Meanwhile, one must wonder what the RWDSU has to offer this time that will convince a majority to vote for union representation. Then again, perhaps the NLRB will make sure that doesn’t matter.