March 29, 2023

DS Duke

Global Business In World

In all of the coverage about how Amazon and its relentless anti-union campaign defeated the union organizing drive at its fulfillment center in Bessemer, Alabama, one key feature of Amazon’s campaign deserves highlighting—namely, Amazon’s countless tactics to try and delay the vote and dilute the union’s support by adding thousands of workers to the bargaining unit who hadn’t previously been involved in the organizing drive. This common tactic, which is straight out of the standard union avoidance playbook, unquestionably played a significant role in defeating the organizing drive. Yet the tactic is perfectly legal under our current labor law. The Protecting the Right to Organize (PRO) Act would put a stop to this tactic and put voting decisions back in the hands of workers and the National Labor Relations Board (NLRB).

First, some background. When workers want to form a union, they typically gather signatures on a petition or cards indicating their support for union representation. If workers and their union gather signatures from at least 30{e5fab30bc1af2ab9862fe5c16f5be581fd243b6ad78468b48e940aadfb2b849d} of the group—known as the “bargaining unit”—the NLRB will process a petition for a representation election. The NLRB will hold a hearing on the petition and issue a decision setting an election date, the voting bloc, the method of voting (mail ballot or in person), and other details.

When employers are notified of an election petition, their first play when they want to defeat an organizing drive is to stall the election and give themselves time to campaign against the union, as Amazon did in Bessemer. A common employer tactic—and one employed by Amazon—is to use the NLRB hearing to argue that the voting bloc should be different from the group described by workers in their election petition. Typically, employers will argue that the voting bloc/bargaining unit should be larger than the one sought by workers, because employers know they can dilute the union’s support by adding workers who haven’t previously been involved in the organizing drive.

Employers slow down the process by asking for a hearing on the proposed bargaining unit, which can take weeks or even months. In the meantime, the employer holds mandatory meetings where workers are required to listen to anti-union speeches by the company. Employers hire professional “union avoidance” consultants, who are paid thousands of dollars a day to script and run anti-union campaigns. The longer the employer can delay, the longer the employer can run its campaign. Meanwhile, the union has no similar access to the facility to talk with workers about the benefits of organizing.

This is precisely what Amazon did in Bessemer. The Retail, Wholesale and Department Store Workers Union (RWDSU) filed a petition with the NLRB on November 20, 2020, seeking an election to represent a unit of 1,500 full-time and part-time workers at the Bessemer fulfillment center. The petition excluded temporary and seasonal employees from the bargaining unit, which is typical, because these short-term employees do not have the same permanent attachment to the job as regular employees. If Amazon had not intervened, an election would likely have been held among the 1,500-person voting bloc in late December.

But Amazon followed the standard employer playbook and insisted on an NLRB hearing over the proposed bargaining unit. Amazon argued that seasonal employees should be included, which increased the size of the bargaining unit almost four-fold–from 1,500 employees to 5,800 employees.

At this point, the union faced a choice—either agree to Amazon’s demand for the much larger unit or endure weeks and months of delay while the parties litigated the bargaining unit issue at the NLRB, with the employer running its anti-union campaign all the while. Not surprisingly, the union agreed to the larger bargaining unit in order to keep the election process moving. But the union then faced the Herculean task of organizing thousands of short-term employees who were now being approached about the organizing campaign for the first time. And we all know the result: Amazon won, and workers lost.

How is it that employers hold so much power in this process—a process that is supposed to be about workers deciding whether they want to form a union? Under current law, the National Labor Relations Act (NLRA) directs the NLRB to determine whether the bargaining unit proposed by workers is “appropriate.” The NLRB uses a “community of interest” test in making this determination, that is, do the workers in the proposed bargaining unit share common supervision, common terms, and conditions of employment, or other similar experiences such that it makes sense for them to bargain together as a unit with the employer?

But under current law as interpreted by the NLRB, employers are permitted to intervene and argue against the proposed bargaining unit by saying that other workers should be included, or that the bargaining unit should be otherwise reconfigured. The Trump NLRB changed the rules to favor employers even more. If the employer challenges the proposed bargaining unit, the NLRB will hold a hearing, which delays the election by weeks or months while the NLRB hears evidence and renders a written ruling. Often a union faced with this predicament will acquiesce to the employer’s proposed bargaining unit, or negotiate a compromise, in order to avoid the expense and delay of an NLRB hearing. That is what happened in Bessemer.

The Protecting the Right to Organize (PRO) Act, passed by the House of Representatives in March and currently pending in the Senate, would curtail the ability of employers to gerrymander bargaining units and delay elections. It does so in three ways. First, the PRO Act directs that employers have no role in the processing of NLRB election petitions—the proceeding is between workers, their union, and the NLRB. Employers would no longer be able to intervene in the election proceedings to try to gerrymander the bargaining unit. Second, the PRO Act makes clear that the bargaining unit proposed by the union will be the voting unit as long as the workers share a community of interest and workers outside the proposed bargaining unit do not have an overwhelming community of interest with them. Finally, the PRO Act codifies reforms adopted by the Obama NLRB—and largely repealed by the Trump NLRB—to streamline the election process to cut down on unnecessary delays that employers then use to campaign against the union.

If the PRO Act’s measures had been in place for the Bessemer campaign, what would have happened? The union would have petitioned for its 1,500 person unit in November. The NLRB would have held a quick hearing within eight days of the petition, verified that the proposed bargaining unit was appropriate, and scheduled a vote that likely would have taken place within a few weeks’ time. Amazon would have had no standing to challenge the proposed bargaining unit, the method of voting, or the date of the election. Workers would have voted on forming a union in late December, and they would have been spared weeks of Amazon’s anti-union campaign.

By exercising its rights under current law, Amazon was able to drag out the process, gerrymander the bargaining unit, and use the delay to run a campaign to undermine the organizing drive—and it worked. Congress must pass the PRO Act to correct this glaring deficiency in the law.

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