The US Labor Board Isn’t Strong Enough To Protect Workers From Amazon. Some Union Organizers Want To Go Around It.

In the lead-up to the biggest union vote in Amazon’s history, the company has already shown it can break the rules and get away with it.

Amazon repeatedly violated the rights of employees who pushed for health and safety improvements during the coronavirus pandemic, according to the nation’s top labor regulator. But a year after the global health crisis began, the company has so far faced minimal consequences.

As COVID-19 spread in the spring of 2020, Amazon employees in New York City, Chicago, Seattle, Arizona, Pennsylvania, California, New Jersey, and Michigan pressured the company to slow down production and ramp up precautions by organizing petitions, press conferences, and even walkouts. Some of those employees subsequently faced disciplinary action at work. A few were even fired, according to charges they later made with the National Labor Relations Board (NLRB), the federal agency tasked with adjudicating complaints about unfair labor practices and defending workers who want to unionize.

In going up against their enormous and powerful employer, these Amazon workers turned to the NLRB for protection as they exercised their legal rights to discuss problems at work and act collectively to fix them. But despite serving as the government’s primary counterweight against powerful companies restricting their workers’ labor rights, the NLRB is notoriously toothless, and in its current form, has little power to penalize employers — especially those the size of Amazon, one of the nation’s largest private employers after hiring more than 400,000 people last year.

Even when the NLRB sides with workers, the consequences, or so-called remedies, it’s able to mete out — typically small monetary settlements, back pay, or posting a flyer — are so minor that they do little to deter employers from violating the rules again. If Amazon workers do persevere despite retaliation and termination and successfully form a union, it’s only one shop at a time out of hundreds.

“From Amazon’s point of view, the NLRB is not a problem,” UC Santa Barbara labor historian Nelson Lichtenstein told BuzzFeed News. “As a remedy for employer violations of the law, it’s very weak. It can have a public role as part of a larger campaign, you can get a judgment against the company, but it’s weak.”

This week, all eyes are on Bessemer, Alabama, where Amazon workers await the results of an NLRB-facilitated union election widely believed to be the most pivotal in the company’s history. Indeed, even a victory at a single facility could activate Amazon employees around the country to follow suit.

But recent events in Alabama suggest the consequences Amazon has faced so far have not discouraged the company from taking a hard line against unions, and under current labor law, the government has little power to intervene. That’s why, even if the union wins in Alabama and workers embark on the long and difficult journey to winning a contract, some labor leaders question whether the best path to attaining more benefits for workers even goes through the federal agency in charge of the matter.

Over the last few months, the NLRB has found merit with many of the high-profile charges brought by Amazon employees last spring, including Courtney Bowden’s claim that she was illegally terminated, Jonathan Bailey’s that he was illegally interrogated, Christian Smalls’ that he was illegally fired, and the claims by a group of workers in Chicago that they were illegally disciplined and intimidated following a series of walkouts.

Of those four cases, Amazon has so far paid one individual an undisclosed settlement and agreed to post a flyer in a Queens warehouse promising not to interfere with employees’ rights to discuss workplace conditions, take collective action, and organize a union. Workers in Chicago who were disciplined for going on strike are currently negotiating the terms of a nonfinancial settlement with Amazon; Smalls’ hearing regarding his termination by Amazon has been delayed until May. Emily Cunningham and Maren Costa, the Seattle-based tech workers and former leaders of Amazon Employees for Climate Justice who were fired last April following their efforts to advocate on behalf of warehouse workers, are awaiting a response to their charge with the board, which they filed last October.

“Even when you win,” Lichtenstein said, “winning doesn’t mean that much.”

Bowden reached a private settlement with Amazon and withdrew her charge, meaning there are no official consequences for Amazon. “I felt like they did the best they could with everything,” she said of the NLRB in an interview with BuzzFeed News. “But I know it didn't hurt Amazon at all.”

Amazon declined to comment on pending litigation. Regarding its settlement with Bowden, a spokesperson said, “While we disagree with allegations made in the case, we are pleased to put this matter behind us. The health and safety of our employees is our top priority and we are proud to provide inclusive environments, where employees can excel without fear of retaliation, intimidation or harassment.”

The company denied allegations made about its anti-union behavior, saying, “Our employees know the truth—starting wages of $15 or more, health care from day one, and a safe and inclusive workplace.”

But Amazon’s campaign against the Retail, Wholesale, and Department Store Union’s Bessemer organizing drive has been so aggressive that President Joe Biden made a statement defending the Amazon workers’ “free and fair choice to join a union,” a move by a sitting president “almost unprecedented in American history,” according to the Washington Post.

Newly appointed NLRB press secretary Kayla Blado, who has been tasked with improving the agency’s outreach, told BuzzFeed News, “Working people should understand their rights and be able to act collectively without any coercion or intimidation from any parties.”

But statistics reflect the extent of the challenge: The number of NLRB elections held in the US has steadily declined over the last five years, with the total number in 2020 — 827 — falling to a low not seen since the National Labor Relations Act was passed in the 1930s, according to pro-union researcher Eric Dirnbach.

"Even when you win, winning doesn’t mean that much."

The feeble state of US labor laws combined with the monolith of opposition presented by Amazon every step of the way has compelled some labor leaders to experiment with organizing strategies that don’t rely on the NLRB. Unsure whether the board is capable of protecting workers and ushering them toward a union, organizers everywhere from college campuses to Google’s campus have pursued alternatives such as minority unionism, where affiliation is declared by a small group of employees without a majority vote. Some Amazon employees say they don’t need a traditional affiliation at all to consider themselves a union.

Some of these alternative methods make it difficult if not impossible for members to collectively bargain with management on behalf of all employees, preventing them from securing a contract that applies to everyone.

But in a country where corporate profits have far outpaced wage growth and government regulators have few tools to punish employers who violate labor laws, workers are starting to decide that they need to experiment with more aggressive tactics and not place their hopes on a federal agency seemingly overmatched in its duties.

Bowden said she felt validated that the NLRB found merit in her allegations against Amazon. But the final outcome of her case made one thing clear: “I don’t think they’re as strong as Amazon.”

When Courtney Bowden applied to Amazon in 2018, she saw the job as a temporary step. She’d studied psychology at Penn State, but couldn’t go back to finish her degree until she paid off some student loans, a goal she hoped getting full-time work at Amazon could help her achieve. Though she was shocked by how difficult the job was and nearly quit after her first day, she soon found she was good at it — and she knew better-paying work would be hard to find.

As time went on, Bowden couldn’t help being critical of how Amazon treated its workers. One thing that bothered her was the fact that employees were required to park in a lot and take a 20-minute shuttle ride to the warehouse, but weren’t paid for that time. Bowden, who has never been in a union, started trying to convince her coworkers to help her pressure management to change that policy.

“I realized when I was going by myself I wasn’t getting nowhere fast. The fastest way was if more people went,” she said. “I felt like it was power in numbers, and the more people, the more things we could get as a collective.”

One morning in December 2019, she got a group of workers at her warehouse in King of Prussia, Pennsylvania, to go to the supervisor’s office to complain — so many participated that they delayed the day’s deliveries by about an hour, Bowden said. Shortly thereafter, management started making retroactive travel pay deposits into employee accounts.

After that victory, Bowden set her sights on paid time off, aligning with Amazon workers in Chicago, Sacramento, New Jersey, and New York who, through an independent, loosely organized, worker-led network called Amazonians United, were fighting for the same thing.

By the time the coronavirus became a workplace issue, Bowden was already feeling targeted by management, according to the charge she filed with the NLRB last March. Bowden said an Amazon HR representative warned her she could get in trouble for what she was doing in February 2020, and that not long after, a different manager penalized her for how she was wearing her hair, even though Bowden said she’d seen plenty of other workers wearing their hair loose below their shoulders.

The final blow came in March, after Bowden had been agitating for Amazon to enforce social distancing by having fewer employees per shuttle. The company, which alleges that Bowden made verbal threats to another employee, suspended her and then terminated her employment. Bowden denies making any threats.

She filed her charge with the NLRB independently, hoping that she’d eventually get her job back and prove that Amazon “can’t do what they did and get away with it.”

But life post-Amazon proved difficult. When the state-subsidized childcare program Bowden relied on found out she was unemployed, it kicked her out. Eventually she got part-time work stocking shelves for a grocery store contractor in the early mornings, leaving her 4-year-old daughter with her mom, who was working from home.

In mid-November, Bowden learned the NLRB had determined that Amazon had “been interfering with, restraining, and coercing employees in the exercise of the rights guaranteed” in the National Labor Relations Act and was taking up her case, according to a board filing obtained by BuzzFeed News. But her preparation for her March hearing was derailed when her mom died unexpectedly of a heart attack at home on Dec. 13.

The sudden death of her mom, who was 62, left Bowden alone with her small daughter, without a job, dealing with expensive funeral preparations. When Amazon offered her a cash settlement (the amount of which she’s not permitted to share), Bowden felt she had no choice but to take it.

To her disappointment, the terms of the settlement mean the company doesn’t admit any wrongdoing, and she is banned from working at an Amazon facility again. But, she said, “I don't regret it because if it wasn’t for me, 800 people wouldn't have gotten their checks.”

Amazon declined to comment on the specifics of Bowden’s efforts in Pennsylvania.

At a warehouse in Queens, another Amazon employee, Jonathan Bailey, said he was “interrogated and threatened” by management following his efforts to shut down the facility in protest of dangerous working conditions during the pandemic. He filed a charge with the board in May.

When he got the news that the agency was siding with him and would require Amazon to post a flyer in the warehouse promising not to interrogate employees or interfere with organizing, he celebrated by posting the notice to Facebook, saying, “I’m proud to be a member of Amazonians New York City and fight with my coworkers for our rights!”

But Bailey found the NLRB process surprisingly slow, and, after four years of then-president Donald Trump, under-resourced, he told BuzzFeed News. Seven months after he filed the charge, the NLRB regional director reviewed his allegations and decided to take action.

When Bailey learned the terms of a settlement negotiated by the NLRB would result in the same outcome — Amazon hanging a flyer in the Queens warehouse about workers’ rights — as if he had gone to trial before an administrative law judge and won, he opted to settle the case. “[Amazon] hired this really big union-busting law firm and, you know, for them, it’s a tiny line item of their costs,” said Bailey, who is now running for public office. “They don’t really care.”

Without going through the legal process of voting to unionize, Amazonians United likely won’t be able to collectively bargain with Amazon. But Bailey feels what they’ve already been able to accomplish is just as effective as a contract. Last year, he and other workers associated with Amazonians United New York succeeded in getting Amazon to give them safe and sick leave and paid time off, benefits to which they are legally entitled.

“We have not had a union election, but we have conducted actions and we have won changes — material changes,” he said. For Bailey, a union isn’t a legal designation but simply workers who “can take actions together to change the conditions in which you work.”

The idea that workers themselves, not the government, should have the power to declare themselves a union, while unconventional, is growing in popularity. Members of the Chicago branch of Amazonians United have repeatedly relied on the NLRB to adjudicate whether or not Amazon has violated their rights at work, most recently when employees were disciplined following a series of walkouts over COVID-19 safety measures. Earlier this month, the board ruled in the workers’ favor in five of their seven claims, and they are currently negotiating a possible settlement. In January, Amazon announced it would be closing the warehouse, DCH1, where the organizers worked and reassigning them to other locations in the region.

While Amazonians United Chicagoland says it has used “the NLRB and the National Labor Relations Act as tools to fight back against Amazon’s retaliation,” the group has no plans to pursue an NLRB election.

“We’re rooting for our coworkers in Alabama and we hope their and our fights inspire workers to

stand up,” the group said in a statement to BuzzFeed News. “But we’re simply building [a] strong worker organization without worrying about [union] elections.”

The outcome of the election at Amazon’s Bessemer warehouse has been the subject of intense national attention over the last few months, just as the NLRB election process has been the focus of labor organizing for the past few decades. But some union leaders, tired of a legal playing field tilted so heavily toward employers and disappointed with the agency’s failure to protect workers, are pushing for experimentation with more radical strategies.

As the Teamster union’s national director for Amazon, Randy Korgan has the tough job of taking on perhaps labor’s most formidable foe in the United States. The Teamsters have organized workers in the freight, logistics, and warehousing industry for over a century, and Korgan said his main concern is finding the fastest route to what he believes is the only thing that will reverse the decline in wages Amazon has brought to that industry — a union contract. And he doesn’t necessarily see that route going through the NLRB. Rather, he said, “There are a lot of other ways to build worker power, as well as seek representation,” though he declined to elaborate on what the specifics of that pathway to a contract could look like.

This month, as the situation in Bessemer was heating up, the Des Moines Register reported that a Teamsters local in Iowa had started organizing Amazon workers there with the goal of helping both warehouse workers and drivers seek union recognition outside the NLRB. Organizing Amazon delivery drivers is a particular challenge because they aren’t employed directly by Amazon, but by small logistics firms called Delivery Service Partners or DSPs. Amazon can terminate a DSP’s contract for any reason, including if its employees join a union — as it did in Michigan in 2017.

That strategy makes it difficult for unions to make inroads. A group called the Amazon Delivery Drivers Coalition has held small rallies and, with help from the Teamsters, filed unfair labor practice charges against Amazon and DSPs on behalf of workers at a few delivery stations throughout the midwest.

There is currently a bill, the PRO Act, before the Senate aimed at strengthening the NLRB, both by increasing penalties for employers who violate the law and by prohibiting some of the anti-union tactics at their disposal. But even if this proposed legislation passes, which currently seems unlikely, or Biden appointees make other moves to strengthen labor law, some labor leaders still believe that there’s good reason to explore strategies for getting workers a union contract that don’t involve the NLRB.

"Some of the new people just don’t know about the struggle that we had to go through."

One alternative path, employed by the Communication Workers of America (CWA) union in campaigns for workers on college campuses and at Google, is minority unionism, sometimes called a members-only union, when a group of workers collectively decide to unionize without a majority vote. The main drawback is that a minority union can’t legally bargain on behalf of all employees, which means they can’t negotiate a contract, but a major benefit is the union can choose to represent workers like temps and contractors who Google doesn’t directly employ. In January, around 230 Google workers — out of more than 100,000 worldwide — formed the Alphabet Workers Union (Alphabet is Google’s parent company) under the umbrella of the CWA, and around 500 more signed on within days, according to the Verge.

Detractors called it “fake union,” and a very public snafu over a press release led some members to call for disaffiliation from CWA, underscoring the risks of moving forward publicly without a formal unionization vote.

But a spokesperson for AWU says it has no plans to part ways with CWA at this time, writing in an email statement: “We are here to work with all Alphabet workers who want to improve our workplace, whether they’re members of AWU or not.”

“Winning an NLRB election is really hard and really resource-intensive,” said Rebecca Givan, a Rutgers labor studies professor. “In some situations, workers are able to do that. But it’s not necessarily the quickest path to winning improvements on the job … I think we’ll continue to see a lot of different approaches.”

The results from Bessemer will be counted this week. Whether it’s a victory or a loss for the union, the road to a contract will be a long one.

Meanwhile, Bowden is trying to move on with her life; in a few weeks, she’s planning to start a new job at a food processing facility that pays slightly less than Amazon’s widely touted $15 an hour.

She hopes the process of taking her complaint to the NLRB raised awareness about the power of organizing within Amazon. But while the benefits and pay she worked for remain, with the high turnover, not many of the people she worked with are left to continue the fight.

“Some of the new people just don’t know about the struggle that we had to go through,” she said. “They’re getting the benefits that people like me had to fight for.” ●

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