Amazon is pushing back towards the recent union election at its Staten Island facility in a new way: by occupying the National Labor Relations Board itself, claiming that the NLRB behaved in ways that showed bias in favor of the union. In the process, Amazon could force the courts to resolve an important ambiguity in U.S. labor law and get the NLRB, the agency tasked with overseeing workplace choices, to act more neutrally.
In the 25 official objections that Amazon filed with the board, the company claims that NLRB’s “interference and mismanagement” prevented “a free and fair choice” at its Staten Island facility. Amazon claims, among other things, that the board arbitrarily excluded some workers from the bargaining unit where the union had to show 30% support to hold a vote. The company also claims that the NLRB allowed union representatives to distribute marijuana to workers in exchange for votes and intimidate workers who oppose collective bargaining. (The union’s lawyer told the Associated Press that the allegation of intimidation was “obviously absurd” and that the distribution of marijuana “did not differ from distributing free T-shirts, and it certainly did not act to interfere in the election.”)
Amazon also argues that the board deliberately timed an order for the company to reinstate a fired worker to get close to the vote to create the impression of retaliation against the union. The worker in question was a union lawyer caught on film instructing sexual slander against a female colleague while protesting outside the Amazon facility. The NLRB claimed that his behavior was protected because he was demonstrating; he testified that he was the aggrieved party because the woman had shouted what he understood as a racist slander to him: “Go back to where you came from! Go back to the Bronx.”
As Amazon points out in its accusations, the NLRB forced a vote in an election that the company won last year due to much less sinister actions. Amazon had asked the U.S. Postal Service to install a mailbox near its facility in Bessemer, Ala., Ahead of a union vote. Due to the pandemic, the vote was sent only by mail, and the company states that it asked for the mailbox so workers would be more likely to vote.
Retail, Wholesale and Department Store Union, whose chance of winning in Alabama depended on limiting turnout to those who were pro-union protested. It claimed that its proximity to the facility gave the appearance that Amazon could monitor the poll. The board agreed, threw out the results and ordered a vote arguing that the mailbox was disrupting the election and intimidating the workers. Amazon throws that decision back to the NLRB: If the election is to be so free of influence that a mailbox can force a do-over, then why are the actions in Staten Island not also a concern?
It is unusual for companies to go after NLRB in a labor dispute. When a company believes that there is fraud, it usually focuses on the union involved. But Amazon’s claims point to a major problem in U.S. labor law. There is disagreement as to whether the NLRB is intended to advocate for trade union or to enforce the National Labor Relations Act neutrally.
Organized labor and its allies claim to be one and the same because the NLRA explicitly favors unions. President Biden made the argument last year: “Since 1935, when the National Labor Relations Act was passed, the federal government’s policy has been to encourage workers’ organization and collective bargaining, not just to allow or tolerate them.”
The reality is more complicated. U.S. labor market policy, as the NLRA states, is “to eliminate the causes of certain significant barriers to the free flow of trade and to mitigate and remove these barriers once they have arisen by encouraging practices and procedures for collective bargaining and by protecting the practice of full freedom of association, self-organization and the appointment of representatives of their choice. “
The law says federal policy “encourages” collective bargaining. But it follows a long preamble to remove “significant obstacles to the free flow of trade.” It reflects the situation in 1935. The previous year had been marked by particularly tumultuous and bloody work unrest. Strikes and lockouts threatened the economy in the midst of the Great Depression. Collective bargaining was a remedy against that chaos. But in addition to ensuring that unions could be formed if the workers so wished, the author of the bill, Senator Robert Wagner, was adamant that the government should not take sides.
“The malicious lie has become widespread that the measure was designed to force men into unions, although the text in simple English prose states that workers must be absolutely free to belong to or refrain from belonging to any organization,” Wagner said in 1935
Should Amazon pursue its case in court, it could force the NLRB to return to a true, neutral purpose.
Sir. Higgins is a research fellow at the Competitive Enterprise Institute.
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