Source: Labor Notes

The ongoing union vote by 5,800 Amazon workers in Bessemer, Alabama, has opened a window into the challenges workers face in unionizing. As the public is learning, the boss gets a big role in the process. It shouldn’t be this way.

As Amazon grew at meteoric rates in 2020, adding almost 500,000 new employees worldwide—as well as $75 billion to the fortune of CEO Jeff Bezos—its workers began fighting for more equitable treatment. Some signed petitions demanding specific changes such as paid sick leave and the end of rate-based write-ups; in Staten Island, workers walked off the job demanding the facility be sanitized.

The Bessemer workers, fed up with the company’s intense productivity quotas and relentless monitoring (including of their bathroom breaks), went a step further. They signed authorization cards with the Retail, Wholesale, and Department Store Union (RWDSU) seeking to form a union. At least 30 percent of the workers at a specified facility need to sign such cards to get a vote for a union at the National Labor Relations Board (NLRB), the federal agency that administers labor law for private sector workers across the United States.

Once the petition was filed, Amazon called in the union-avoidance storm troopers, hiring a law firm well-versed in keeping unions out. Their first task was to create legal issues to delay the actual vote, hoping to use the additional time to “convince” workers to vote against the union. The RWDSU had filed a petition with the Labor Board to represent a unit of 1,500 workers, mostly pickers and packers, at the Bessemer facility. Amazon’s lawyers, using a well-worn employer tactic, countered that the only lawful unit had to include all workers at the facility, including seasonal employees—approximately 5,800 workers in total—about four times the number the union had petitioned for.

Under NLRB rules, a disagreement about who must be in the unit—an “appropriate unit” in NLRB-speak—requires a hearing. Hearings take time. Each job category is evaluated as to whether it is more or less like another job category—is the job in the unit or out? The employer has all the records, which the union has to file subpoenas to get, leading to more fights and costing more time. To make matters worse, hearing days don’t necessarily run consecutively. As a lawyer for the Communications Workers of America (CWA), I once did such a hearing that lasted for almost a year.

Employers usually seek a bigger unit to buy time or scare off the union. But, sometimes they try to dilute the pro-union vote by arguing that a job classification with a lot of union support should be out of the unit, or a job with little union support should be added. If the Board agrees with the company on the larger or different unit, the union might not have enough cards to support the petition, or will walk away because they can’t win.

THE CONSULTANTS MOVE IN

Even if the Board ultimately sides with the union, while the parties are fighting all of this out, another wing of the union-avoidance machine moves in: the consultants, often called persuaders. Their job is to convince workers of any combination of the following: you don’t need a union; you don’t want a union; unions can’t help; unions are costly; unions are scary; unions are corrupt; unions don’t care about you; you will end up on strike; you could get fired. And, “Vote No!”

The more time the lawyers get, the more time the consultants have to hammer home their message. In this case, RWDSU stopped Amazon’s attempt to drag things out by agreeing to the 5,800-worker unit. This ended the big stall, but it also makes victory for the workers and the union much more difficult.

Nonetheless, the persuaders moved quickly. At Bessemer, they’ve plastered “Vote No” signs everywhere, even in bathroom stalls. (“You go to the bathroom for privacy,” one worker told labor reporter Steven Greenhouse, “but then you have a flyer right in your face. That feels like a type of harassment.”) Workers have been required to attend weekly anti-union meetings—called captive audience meetings—where they are told how terrible unions are.

Amazon created a special website for Bessemer workers—doitwithoutdues.com. Animated characters and workers holding their thumbs up assure the Bessemer workers that the company already has them covered with good pay and benefits, and that if they pay dues (alleged to be $500 without any indication of a time period), “it won’t be easy to be as helpful and social with one another.” It then tells workers that they can ask for their cards back and that they should “reclaim” their voices. Much of the information is wrong, misleading, or silly—but providing facts is not the goal. Getting workers to vote “no” is the point.

WORKERS ALONE SHOULD DECIDE

But why do employers get to have a say in which workers should be in a union? Unions are organizations of workers; they alone should decide. In no other arena does the entity being organized against get to decide who can be in the group fighting them. If you buy a used car that is a lemon and discover the dealer has done the same thing to others, you can create a group to protest the dealer’s practices without the dealer getting to say who can join. In sports, a team does not get a voice in deciding their opponent’s roster or strategy. The Democrats don’t get to decide the candidates of the Republicans, or vice versa.

Who invited the bosses in? Senator Taft, Representative Hartley, and all the Republicans—and some Democrats who voted with them—in 1947. When Congress passed the Wagner Act in 1935 giving workers the right to unionize, employers believed it was unenforceable and ignored it. A decade later, they had learned otherwise and pushed Congress to pass the Taft-Hartley amendments, seeking to curtail the power of unions and to bring the boss into the process.

By the early 1970s, the union avoidance industry had become big business. Lawyers and consultants have since spent decades finding even more weaknesses in NLRB law and procedures, effectively thwarting the desires of workers to unionize. A 2019 report from the Economic Policy Institute estimated that employers spend $340 million a year on union avoidance consultants. In 2018, 48 percent of non-union workers said they would join a union if they could; yet just 10.8 percent of workers belong to a union today. Between those two numbers is the union-avoidance industry doing the bidding of the bosses.

Employers often argue that they are simply exercising “free speech.” But their role in the process is far more pervasive and destructive than simply giving their point of view during a union organizing campaign. By having an official role in NLRB representation procedures, employers gain influence over every step of the process. With far greater resources and constant access to workers on the job, employers are able to defeat unionization efforts much of the time. Board statistics show that unions win about 50 percent of elections administered by the NLRB. But these statistics don’t include petitions that are withdrawn because a union can no longer win after a prolonged period of endless “vote no” messaging, or after a decision finding only a vastly different unit to be “appropriate.”

Nor is “free speech” a meaningful concept here. Workers do not have the freedom to not listen to management’s endless bombardment of anti-union speech and veiled threats during the workday. Unions and pro-union workers do not have the same “free speech” rights as the employer: the union cannot enter the workplace and talk to workers; cannot call meetings on company time to talk about the benefits of forming a union; cannot be present at captive audience meetings to counter employer falsehoods; and cannot intervene in one-on-one conversations where supervisors share their personal anti-union message with workers. Unions also can’t have leaders of the anti-union campaign transferred out of their departments or fired on trumped-up charges—tactics management deploys against union supporters to crush all too many organizing drives.

There is a lot of talk about labor law reform. It is necessary and long overdue. Key to reforming this country’s broken labor relations system is curtailing the role of employers in the unionization process. Unions belong to workers. If the bosses have something to say, they can say it at the bargaining table.

Gabrielle Semel is a retired union-side labor lawyer. She was District Counsel to District 1 of the Communications Workers in New York for more than 30 years. She also worked as a field attorney at Region 2 of the NLRB in Manhattan for two years. She is currently working on a book about a lengthy battle to get and keep a union at Brooklyn Cablevision.

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