News & Commentary

November 30, 2021

Jon Levitan

Jon Levitan is a student at Harvard Law School and a member of the Labor and Employment Lab.

Yesterday, the NLRB officially ordered a rerun election at the Amazon warehouse in Bessemer, Alabama. The Retail, Wholesale, and Department Store Union (RWDSU) lost an initial election last spring but filed election objections with the Board; after a multi-day hearing, an NLRB hearing officer found merit to the union’s objections and recommended a second election. The main point of contention was Amazon’s insistence that the Post Office install a mailbox where workers would submit ballots right outside the warehouse. NLRB Region 10 Director Lisa Henderson agreed yesterday, and ordered a new election to be conducted sometime this spring. The RWDSU celebrated the Board’s decision, with President Stuart Appelbaum saying “Today’s decision confirms what we were saying all along that Amazon’s intimidation and interference prevented workers from having a fair say in whether they wanted a union in their workplace and as the Regional Director has indicated, that is both unacceptable and illegal.”

In her decision, Region 10 Director Henderson pulled no punches when she discussed Amazon’s conduct during the election campaign. Amazon’s “flagrant disregard for the Board’s typical mail-ballot procedure compromised the authority of the Board and made a free and fair election impossible.” She wrote that, before the election, “I specifically disapproved of the Employer’s suggestions for making voting “easier” because the Employer is neither responsible for conducting elections nor is it tasked or authorized to aid the process. Such responsibility and authority rests solely with the Board.” Amazon’s decision to place the mailbox outside the warehouse, then, “essentially highjacked the process and gave a strong impression that it controlled the process. This dangerous and improper message to employees destroys trust in the Board’s processes and in the credibility of the election results.” 

Henderson’s scathing language seemed more apt for a bargaining order, rather than a simple rerun election, observed union organizer Jeremy Baiman on twitter. Henderson was perhaps unwilling to impose a bargaining order because the RWDSU never had a card majority nor made a bargaining demand; both of which are necessary under current Board precedent to justify a bargaining order. As I wrote last month, that doesn’t necessary need to be the case because the Board can and has imposed non-majority bargaining orders in the past. Even though unions tend to lose rerun elections, this is not a meaningless remedy. In addition to the RWDSU simply having another chance, the NLRB will send a notice to all eligible voters that says it “found the Employer interfered with the employees’ exercise of a free and reasoned choice by creating the appearance of irregularity in the election procedure.” Amazon can appeal Henderson’s decision to the full NLRB if they so chose. But, as Dave Jamieson noted, Amazon’s chances of success before Joe Biden’s NLRB are slim to none.

In other Alabama news, a state court judge has said that striking mine workers at Warrior Met Coal—who have been on strike for over eight months—cannot picket outside any properties owned by the employer. The Judge, James Roberst Jr. of the Circuit Court of Tuscaloosa County, extended a temporary restraining order which bars the workers from picketing until December 2. It’s an extraordinary decision, as Ian Kullgreen of Bloomberg Law writes, because it was “a rare incursion by a local court into a private-sector strike—an activity protected under federal labor law for nearly a century.“ The Mine Workers said it was both illegal under labor law and unconstitutional under the First Amendment. 

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