The Industry

What Amazon Got Away With

Many of its anti-union tactics were perfectly legal, because labor law is broken.

The Amazon fulfillment warehouse at the center of a unionization drive is seen on March 29, 2021 in Bessemer, Alabama. Employees at the fulfillment center are currently voting on whether to form a union, a decision that could have national repercussions. (Photo by Elijah Nouvelage/Getty Images)
The Amazon fulfillment warehouse in Bessemer, Alabama. Elijah Nouvelage/Getty Images

Amazon may think it’s done in Bessemer, Alabama, but Bessemer isn’t done with Amazon. Last week, the vote on whether to unionize the company’s warehouse in the Birmingham suburb ended with a win for Amazon, with workers voting 2-1 against joining a union. But now the company is facing allegations that it illegally interfered with the historic campaign. The National Labor Relations Board, the federal agency charged with enforcing labor law, will likely find that Amazon flouted federal labor law and may order a redo of the election. But even if Amazon follows the law next time, Amazon workers won’t get a free and fair chance to vote on unionizing—because federal labor law is so broken that employers can and do legally rig union elections against their own workers.

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To start a union, workers have to show that a majority of their co-workers want to join—usually through an NLRB-supervised “representation election.” These elections are supposed to be free and fair. But in reality, they’re more like the kinds of elections run by a Tammany Hall mob boss (or sought by Georgia Republicans). When workers announce plans to unionize, employers like Amazon respond with a relentless, no-holds-barred campaign of intimidation, anti-union propaganda, and retaliation. The company faces dozens of federal allegations from facilities around the country for firing workers who organized walk-outs demanding the company adopt COVID-19 safety best practices, sending the message that workers who spoke out for any union effort could expect to lose their jobs during a pandemic and economic crisis. The company surveils workers who organize and recently even posted job listings for “intelligence analysts” to monitor “labor organizing threats.”

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The National Labor Relations Act, the federal law governing unions and workplace organizing, is supposed to protect workers’ right to organize for better wages and working conditions. But the NLRA hasn’t been updated in decades, while right-wing judges and politicians have steadily chipped away at the law’s protections. Today, many of Amazon’s worst union-busting tactics are effective, intimidating, and mostly legal.

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When workers started organizing in Bessemer, the company immediately hired anti-union consultants, to the tune of over $10,000 a day, to create a climate of fear and intimidation. The company papered the warehouse, including bathroom stalls, with anti-union propaganda and sent workers daily text messages pushing them to vote “No.” Workers’ every move is tracked through workstation cameras and mobile apps. As Rep. (and former labor organizer) Andy Levin explained, Amazon’s goal isn’t to persuade people to vote “No.” It’s to “create so much pressure, anxiety, and fear” that workers “feel they have no choice but to vote NO, like someone crying uncle when they have been threatened relentlessly for days, weeks, and months.” But unless the barrage of anti-union messaging contains clear threats of retaliation, it’s probably legal—even if any worker knows that the implied message is that being pro-union could cost them their jobs. Meanwhile, employers can legally bar pro-union workers from talking about the union and building support at their place of work.

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Amazon forced workers to attend what labor organizers call “captive audience meetings,” in which company representatives push workers to vote against the union. Employers can legally lie about unions as long as they don’t do it with forged documents (it’s the first bullet on the NLRB’s explainer of what employers can and can’t do), so captive audience meetings tend to be full of misinformation and intimidation. Employers monitor which workers attend these meetings—and workers who don’t go can legally be disciplined or even fired. Amazon sometimes forced workers to attend several sessions a week. Federal labor law prohibits employers from threatening workers to vote “No,” but companies can use captive audience meetings to make ominous “predictions” about what will happen if they don’t. Bessemer workers report that Amazon representatives said the company would slash benefits and even shut down the warehouse if the union won. If that sounds like a threat to you, it probably sounds like one to the workers too—whether or not federal labor law recognizes it as one. And even if workers file a federal claim saying that Amazon’s misinformation crossed the line into illegal threats, by the time the National Labor Relations Board hears the charge, it’s too late—the company has already sown fear and made a fair election nearly impossible.

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Amazon’s most effective union-busting tactic may have been diluting the union’s vote. The union initially filed a petition to represent 1,500 workers in the Bessemer warehouse, excluding employees like truck drivers and seasonal workers. But in December, just months before the election, Amazon pushed for all 5,800 warehouse workers to be part of the bargaining unit that would vote on the union. Amazon’s move added thousands of workers to the unit who union organizers had never spoken to or organized—but who were forced to attend Amazon’s meetings, absorb anti-union propaganda, and internalize fear of retaliation for pro-union activity. If Amazon hadn’t diluted the vote, the union may very well have won the original 1,5000 person unit, which it had organized and trained for months in advance—but under current law, Amazon can legally gerrymander the unit to all but guarantee that the union loses.

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Amazon also barred union organizers from coming into the warehouse to talk to workers (legal), forbid workers from promoting the union during working time (legal), and hired cops as private security to keep union supporters and organizers out of a warehouse where the large majority of workers are Black (legal). Amazon even demanded local county officials alter the traffic light patterns outside the warehouse to make it harder for union organizers to reach employees during shift changes. Neither the NLRB nor any court has said that’s illegal either.

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Even when companies openly break the law, federal labor law only responds with a slap on the wrist. Amazon is currently under investigation for illegally firing workers who organized at a number of its warehouses. But even if the company is found responsible for retaliation against pro-union workers, the only financial penalty it faces—and the only compensation that fired workers will see—is reinstating those workers and paying back pay for the time they were off the job, minus wages they earned in any new ones. In other words, if Amazon gets caught illegally firing workers, they’re just put back in the same financial position they would have been in if they had just followed the law in the first place. Meanwhile, a pro-union worker could have been jobless for months during the pandemic, lost their home, and struggled to put food on the table. With penalties like these, it’s no wonder that employers are charged with violating workers’ rights in more than 40 percent of NLRB union elections, often by retaliating against pro-union workers.

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Amazon won’t even face significant consequences for openly defying the NLRB’s order to honor workers’ right to vote via secret ballot. Because of the COVID-19 pandemic, the Bessemer election was conducted by mail. According to the Washington Post, the National Labor Relations Board denied the company’s request to put a ballot drop box on company property, where the company could track which workers were voting “No” on the union. The company simply ignored them, successfully pressuring the USPS to install a ballot dropbox with no USPS markings right outside Amazon’s warehouse—which organizers believe led some workers to (incorrectly) think that Amazon had a role in overseeing the election. Because Amazon reportedly ignored the NLRB’s orders, the Board will probably find that the company violated federal labor law. But again, the company won’t face fines or penalties; they won’t be required to recognize the union or back off their anti-union tactics. Under current law, the only remedy is to let the union try again, after Amazon has blunted their momentum.

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Today, the Senate is considering the PRO Act, the most ambitious labor law proposal to pass the House in nearly a century—and which could help workers get a fair shot at forming a union. The law would ban captive audience meetings and allow electronic voting, so workers could vote from the privacy of their homes instead of at work under Amazon’s all-seeing surveillance system. As labor lawyer Brandon Manger recently explained, the law would limit Amazon’s vote-dilution tactics. And, critically, the PRO Act would actually incentivize employers to follow the law. Companies that broke federal labor law would be subject to civil penalties, workers could directly sue for retaliation (which they currently cannot), and employers who ignored Board orders would earn fines of $10,000 a day for each separate unfair labor practice. Because retail giants like Amazon might see penalties as the cost of doing business, the company executives who plan to break labor law could be on the hook to pay those penalties personally.

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Most importantly, workers might never have to go through the fear and intimidation of a union campaign in the first place. Before a union election is called, unions have to show that a large group of workers have signed “cards” saying they want a union — and, to help protect workers from retaliation, many unions wait to go public until a majority of workers have signed cards. Under the PRO Act’s “card check” provisions, a union could show that a majority of workers support the union just by signing cards, gathering support before a boss has time to interfere. Workers would be spared the pressure campaign: If a majority of workers wanted a union, they’d just get it.

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Labor law is supposed to protect the right to organize. But today, though more than half of workers say they would join a union if they could, fewer than 11 percent of workers are actually in one. Public support for unions is higher than it has been in nearly 20 years, but union membership is on a steady decline. That gap proves that anti-union employers like Amazon are winning, because the very laws that are supposed to protect workers’ right to organize make it easy for employers to kill a union with a barrage of intimidation and retaliation—and it won’t change until labor law works for working people.

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