The Bizarre Logic of the NLRB’s Decision in the Amazon Union Case

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The National Labor Relations Board’s (NLRB) order overturning the workers’ rejection of a union at an Amazon facility in Bessemer, Alabama, and ordering a second vote is a clear example of President Biden’s recent picks for the Board swinging it away from being a neutral arbiter back to being the advocate for unions it was under the Obama administration.

The decision in the Bessemer case is built on the legal principle of damned-if-you-do and damned-if-you-don’t. Not only is an employer prohibited under the National Labor Relations Act from preventing workers from voting on collective bargaining, on Monday the NLRB said it was also wrong for the employer to try to make it easier for workers to vote.

More specifically, a NLRB regional director said that Amazon had tainted the election because it had successfully prevailed on the U.S. Postal Service to put a mailbox outside the Bessemer worksite prior to a union election involving the Retail, Wholesale, and Department Store Union (RWDSU). The mailbox was to ensure that the workers could cast their ballots, thereby exercising their rights under NLRA.

Amazon had a perfectly legitimate reason for doing this. Most union elections are held at the worksite, which ensures high turnout. In the Bessemer case, the NLRB decided to use a mail-in ballot instead. This was in April 2021 and there was obvious concern that having workers stand in line to vote would be dangerous.

A mail-in election was a lucky break for the RWDSU because those are easier for unions to win. Pro-union folks are better motivated to post their ballots through snail mail than those who don’t want collective bargaining. A union only needs to win a majority of the votes cast, not a majority of all workers, so the smaller turnout favors the union. Amazon tried to counter this with the mailbox, which made it easier for all workers to post their ballots while going to or from work.

The NLRB said that was a violation worthy of throwing out an entire election and calling for a new one. the NLRB regional director stated:

By installing a postal mailbox at the main employee entrance, the Employer 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.

Yet, the NLRB invalidating an entire election might do more to damage its credibility, especially when there were no allegations of ballot-stuffing or fraud . The order goes so far as to say that Amazon having a banner with the words “speak for yourself” adjacent to the mailbox was proof of interference.

The decision is particularly nonsensical given the margin of defeat for the RWDSU. The Amazon worksite had 5,876 workers eligible to vote, but only 3,041 mailed in their ballots, according to the NLRB. Therefore, the union only needed the support of 1,521 workers—about a quarter—to win under the NLRB’s rules. It couldn’t manage even that. Only 738, about 13 percent, voted for the union.

Note also that less than half of the workers voted. Had the board had its way and the mailbox not been placed, it is likely that even fewer workers would have cast ballots. The decision states:

Strikingly absent from the Employer’s recitation of Board law is precedent establishing that the Board allows, permits, authorizes, or otherwise condones either party taking unilateral action to increase voter turnout.

The truth is the union lost because the workers rejected it. “I work hard for my money, and I don’t want any of it going to a union that maybe can get us more pay, or maybe can get us longer breaks,” Melissa Charlton Myers, a Bessemer, Alabama, worker told the The Wall Street Journal after the vote. “It’s not worth the risk.”