The Amazon Labor Union (ALU) has just won the first round against Amazon of what promises to be a lengthy legal battle. Last week, a National Labor Relations Board (NLRB) official who conducted a twenty-four-day hearing on Amazon’s objections to the union’s win in Staten Island issued a report stating that the union should be certified. The regional director will issue a formal ruling based on this report. Sadly, the ALU’s victory does not mean that Amazon will now come to the bargaining table. The company has already announced it will appeal.
None of this is surprising. The ALU won the election by more than five hundred votes. It is very hard to overturn a margin that big. Amazon did not expect to win, and indeed winning was not their goal. Delay was their goal, and by filing twenty-five essentially bogus allegations they bought more than five months of delay.
After the regional director issues a decision, Amazon will appeal to the board in Washington. It will most likely lose there as well. They will then appeal to a federal court of appeals. It should also lose there. But Donald Trump’s administration successfully appointed many right-wing judges who care little about the lives of working people and know even less about labor law. Nonetheless, even in the federal courts, winning is not Amazon’s goal. Once again, delay is the goal.
I worked as an NLRB attorney at the Manhattan Region in the mid-1980s. Shortly after I started, the region opened a ballot box that had been “impounded” for a few years. (Sometimes if there is a lot of litigation concerning a representation case, the region will conduct the election, seal the ballot box, and not count the ballots until the legal issues are resolved.) When the ballots were counted, the union had won. None of the workers who voted in the election were still working for the company, I was told. The union had won a pyrrhic victory as it no longer had any support.
This is not the situation with the Amazon election in Staten Island, as the ballots were counted. But Amazon’s goal is to have the same result — delay the proceedings until all the union supporters are gone. Even if the union ultimately wins, it loses.
Amazon, like other employers who can afford to buy time, want to delay the process as much as possible to convince workers that unionization is futile. With a turnover rate of 150 percent, Amazon knows that most of the workers who defied the company and voted for the union will have left the company long before the legal issues are resolved.
This is a well-worn employer playbook. While the lawyers file endless delaying motions and appeals, union-busting companies use other means to crush support for the union. They subject workers to endless captive audience meetings where they drone on about the evils of unions, they bombard them with anti-union propaganda, they fire leaders, they change work rules, they give greater benefits to non-union workers, they drag out bargaining, they covertly encourage anti-union workers to petition for another election to vote the union out. Their aim is to make unionizing so difficult that workers and their unions give up.
Over the last year, workers have been winning union elections across the country. Petitions for representation elections have increased at the NLRB by 58 percent. Along with victory at Amazon, Starbucks workers have filed petitions for union elections at hundreds of stores, winning most. These victories have inspired others. Workers at REI, Trader Joe’s, and even the Audubon Society have also organized. Industries once thought immune to union ideas such as the video game and tech industries are now organizing. In most of these campaigns, the unions have been certified.
The next step is harder. Once a union is certified, the employer allegedly has an obligation to bargain in “good faith.” That term has been stretched so thin that it’s almost meaningless. During the last many decades, employer-side lawyers successfully eroded any punch the good faith requirement once had. Skilled union-busting law firms know how to come up to the line and not cross it, making it very difficult to prove bad-faith bargaining. NLRB decisions during Republican administrations uphold atrocious employer behavior as lawful. These terrible decisions become precedent granting employers even more leeway to deny workers their rights. This process has been going on for a long time.
A union cannot be voted out for one year after being certified. Thus, during this first year, the employer’s goal is — no surprise — delay. It drags out bargaining so that an agreement cannot be reached before the end of the certification year. With little happening at the bargaining table, workers understandably become discouraged. As the one-year anniversary approaches, employers working behind the scenes begin encouraging anti-union workers to file a decertification petition seeking a second vote to oust the union.
While it takes many different forms over the course of the process, delay is an incredibly effective anti-union strategy. Unfortunately, our labor law is set up to support employers in dragging things out.
The Cablevision Story
In early 2012, workers at Cablevision in Brooklyn (now Optimum) voted overwhelmingly for a union. The mostly black workforce voted 180 to eighty-six to be represented by the Communications Workers of America (CWA).
Like many of the workers in this current wave of organizing, Cablevision workers began by organizing themselves. Inspired by a massive strike in New York and New England of telephone workers against Verizon, the Brooklyn Cablevision workers collected signatures for a representation election and came to CWA with signed cards. Several months later, after building a strong committee at the three garages in Brooklyn, the union filed for an election. Cablevision, like Amazon and other big employers, had successfully fought unionization for years; they did not expect to lose.
After the vote, Cablevision spent many millions trying to get rid of the union. Early on, its lawyers rejected bargaining dates using one lame excuse after another. They failed to provide needed information requested by the union or gave the wrong information. While refusing to bargain with CWA over money issues for the Brooklyn workers, Cablevision gave all other workers in the entire company raises averaging 14 percent. As at Amazon and Starbucks, the union filed multiple unfair labor practice charges with the NLRB.
Shortly before the first year was up, Cablevision illegally fired twenty-two workers at the same time. Those twenty-two workers were almost 10 percent of the Brooklyn workforce. To put this in perspective, if Amazon had fired the same percentage of workers at the Staten Island warehouse, they would have had to fire over five hundred workers. On the same day that Cablevision fired twenty-two workers, it gave out a memo reminding the Brooklyn workers that the one-year certification period was almost over and they should call the NLRB if they wanted to know how to decertify the union. Helpfully, it gave the phone number for the Brooklyn Region.
The Cablevision firings were illegal, but Cablevision was not concerned. Their aim was to terrify the Brooklyn workforce with the firings and goad them into voting the union out. If way down the road they had to pay backpay to the twenty-two workers, so be it — that would be considered the cost of doing business. The goal was shedding the union.
Their plan failed. The decertification petition filed by a group of anti-union workers was dismissed by the NLRB region because of the many unremedied unfair labor practices. Cablevision fired more workers. When the labor board refused to conduct another election, Cablevision conducted its own illegal election to vote the union out. Not surprisingly, the union lost Cablevision’s sham election (although not by much). Cablevision then took out full-page ads in the New York Times and the Daily News announcing their victory. The Cablevision election did not mean that the union did not represent the Brooklyn Cablevision workers — its purpose was to demoralize the workers. It also was illegal.
Eventually the Cablevision workers and CWA won. It took more than five years. During those five years, the workers and the union organized, marched, demonstrated, testified, petitioned, and held strong. Many unfair labor practice charges were filed at the region and multiple trials were held, two lasting more than twenty days each. The NLRB even considered seeking an injunction in federal court against the company. Cablevision finally put a serious offer on the table, although not 14 percent as workers at the rest of the company had gotten.
The battle went on for several more years. The workers and CWA eventually won. The timing of the victory involved the sale of the company, but more important, the workers and the union won because they never gave up.
At the time of the settlement, none of the unfair labor practice charges filed by the union against Cablevision had been resolved. The union had won at the trial level, but Cablevision appealed every decision to the board in DC and announced that it would appeal to federal court as well if it lost at the NLRB. In the face of these tactics, the victory was achieved because the workers kept fighting.
To win, workers and unions must throw everything into the fight. When the parties finally reached agreement at Brooklyn Cablevision, the document settling all the outstanding NLRB issues was more than seventy pages long.
The Right to Organize
Under our current labor laws, employers with enough resources, like Cablevision, Amazon, and Starbucks, can drag things out for a very long time, spending millions and millions of dollars to get rid of a union. One might ask: Why don’t they just spend the money on making things better for the workers at their companies? The answer is simple: they believe that in the long-term unions will cost them more.
Beyond the issue of financial cost, there is also the issue of control. Companies do not want to share control of the workplace with the people who work there. They want to be able to hire and fire as they see fit, to reorganize work without dispute, and to shut down an operation or facility without consideration of the workers they are harming. In essence, they want to squeeze as much as possible out of their workforce without organized resistance.
The fact that employers fight so hard tells you how much a union is worth. A good union can transform the workplace. Getting there today is hard. Newly organized workers need to be prepared for the long haul.
To support these newly organized workers, the labor movement must demand more resources for the NLRB now. The agency was hollowed out under the Trump administration and is in crisis. It is underfunded and underresourced. Delay is endemic, and as we have seen, delay advantages employers. Labor law in this country must be changed.
Support for unions is now 71 percent, the highest it has been in more than fifty years. Joe Biden pledged to be the most pro-union president in history. He and other Democratic politicians claiming to support labor need to do more than just mouth platitudes. For a start, they need to pass the PRO Act, which would impose meaningful penalties on outlaw employers, require real good-faith bargaining with mediation and arbitration as a backstop when such bargaining does not occur, make union organizing easier, and more.
A great deal of damage has been done to labor law over the last few decades, and there is a lot to undo. Working people have the right to organize unions, and those rights must be promoted and protected.