Amazon Takes On the National Labor Relations Board

After losing a union vote in New York, the company accuses the NLRB of bias

By Sean Higgins.

"Amazon is pushing back against the recent union election at its Staten Island facility in a novel way: by taking on the National Labor Relations Board itself, alleging that the NLRB behaved in ways showing bias in favor of the union. In the process, Amazon may force courts to clarify an important ambiguity in American labor law and make the NLRB, the agency charged with overseeing workplace elections, act more neutrally.

In the 25 official objections Amazon filed with the board, the company argues that the NLRB’s “interference and mismanagement” prevented “a free and fair election” at its Staten Island facility. Among other things, Amazon alleges that the board arbitrarily excluded some workers from the bargaining unit in which the union had to show 30% support to hold a vote. The company also alleges the NLRB let union representatives distribute marijuana to workers in exchange for votes and intimidate workers opposed to collective bargaining. (The union’s lawyer told the Associated Press that the intimidation allegation is “patently absurd” and handing out marijuana “is no different from distributing free T-shirts and it certainly did not act to interfere with the election.”)

Amazon also argues that the board deliberately timed an order that the company reinstate a fired worker to come out close to the vote to create the impression of retaliation against the union. The worker in question was a union advocate caught on film directing sexual slurs at a female co-worker while he protested outside the Amazon facility. The NLRB claimed that his behavior was protected because he was demonstrating; he testified that he was the injured party because the woman had shouted what he understood to be a racial slur at him: “Go Back to where you came from! Go Back to the Bronx.”

As Amazon points out in its charges, the NLRB forced a revote in an election the company won last year over much less egregious actions. Amazon had asked the U.S. Postal Service to install a mailbox near its facility in Bessemer, Ala., ahead of a vote to unionize. Because of the pandemic, the vote was mail-in only and the company states it asked for the mailbox so workers would be more likely to vote. 

The Retail, Wholesale and Department Store Union, whose chance of winning in Alabama depended on limiting turnout to those who were pro-union, objected. It argued that its proximity to the facility gave the appearance that Amazon could monitor voting. The board agreed, threw out the results, and ordered a revote, arguing that the mailbox interfered with the election and intimidated workers. Amazon is throwing that decision back at the NLRB: If the election has to be so free of influence that a mailbox can force a do-over, why aren’t the actions in Staten Island also a concern?

It is unusual for corporations to go after the NLRB in a labor dispute. When a business believes there’s misconduct, it usually focuses on the union involved. But Amazon’s allegations point out an important problem in American labor law. There is disagreement over whether the NLRB is meant to advocate for unionization or to enforce the National Labor Relations Act neutrally.

Organized labor and its allies argue that those are one and the same because the NLRA explicitly favors unions. President Biden made the argument last year: “Since 1935, when the National Labor Relations Act was enacted, the policy of the federal government has been to encourage worker organizing and collective bargaining, not to merely allow or tolerate them.”

The reality is more complicated. U.S. labor policy, as the NLRA states, is “to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.”

The law does say federal policy is “encouraging” collective bargaining. But that follows a long preamble about eliminating “substantial obstructions to the free flow of commerce.” That reflects the situation in 1935. The preceding year had been marked by particularly tumultuous and bloody labor unrest. Strikes and lockouts threatened the economy amid the Great Depression. Collective bargaining was a remedy for that chaos. But beyond ensuring unions could form if workers desired them, the bill’s author, Sen. Robert Wagner, was adamant that the government shouldn’t take sides.

“The malicious falsehood has been widely circulated that the measure was designed to force men into unions, although the text provides in simple English prose that workers shall be absolutely free to belong or to refrain from belonging to any organization,” Wagner said in 1935.

Should Amazon pursue its case in court, it could force the NLRB to return to true, neutral purpose.

Mr. Higgins is a research associate with the Competitive Enterprise Institute."