As Jon covers in today’s News and Commentary, Amazon has a “voluntary resignation program” through which it pays warehouse employees about $1000 to quit their jobs. According to reporting on the program, this is an annual “offer” that Amazon makes each February to warehouse workers nationwide. Also according to reporting on the program, the idea behind the buyout is to encourage those employees who lack proper “commitment” to leave Amazon. Whatever the general merits of the program, it is now being offered to Amazon workers in Bessemer, Alabama who are voting in a union election. Any worker who accepts the $1000 and quits will be ineligible to vote in the election. And any worker who is hired to replace those taking the buyout will be similarly ineligible to vote. Viewed from this perspective, the buyout program is functionally a way for Amazon to pay eligible voters to leave the bargaining unit. Since employees’ right to vote in a union election, and to do so free of managerial interference, is a right protected by section 7 of the NLRA, Amazon’s program amounts to a means of paying employees to give up their section 7 rights.

Now, to be fair, the buyout program is national in scope and was not adopted to interfere with the union election in Bessemer. There is no evidence, in other words, that the program was adopted for – or is being implemented with – an anti-union animus. Usually, this lack of anti-union animus – this lack of discriminatory motive – is enough to shield a management tactic like this one from unfair labor practice liability. But there is an exception to this animus requirement in Board law. Where a management practice is “inherently destructive” of employees’ union rights, “a violation may be proved without evidence of improper motive.” In fact, where the management tactic is inherently destructive of employee rights, the Board is empowered to find an unfair labor practice even if the tactic has an independent business purpose. As the First Circuit put it recently:

If the employer’s conduct is “inherently destructive” of union members’ rights under section 7 of the NLRA, 29 U.S.C. § 157, a violation may be proved without evidence of improper motive if the employer fails to prove that its actions can be justified as “something different than they appear on their face.” Even if a business justification has been proved, an inference of improper motive may be drawn from the inherently destructive conduct itself and the Board remains free to “strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy.”

The range of managerial practices found to be inherently destructive of employee rights is varied and predictably does not include the specific tactic involved here. Perhaps closest is a 2018 decision in which the Board applied the “inherently destructive” framework and held that an employer’s decision to grant healthcare benefit improvements to “all employees except those eligible to vote in a pending representation election” was an unfair labor practice. Of course, it is the Board’s responsibility to ensure that its doctrine keeps pace with changing managerial practices. And surely the Board would be justified in concluding that a management practice of (literally) paying employees to leave the bargaining unit during an ongoing union vote is “inherently destructive” of section 7 rights. Under extant law, therefore, even though the Amazon program may lack an anti-union motivation, the Board could rightly determine that it is an unfair labor practice.