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Amazon Aims to Blunt Union Drive at Alabama Warehouse (1)

Dec. 18, 2020, 8:48 PM; Updated: Dec. 18, 2020, 9:12 PM

Amazon Inc. sought to kill the momentum of a closely watched union drive at an Alabama warehouse, launching an elaborate legal defense aimed at forcing union organizers to win over hundreds more employees than they anticipated.

In an initial hearing before the National Labor Relations Board Friday, Amazon attorneys argued that the Retail, Wholesale and Department Store Union severely limited the types of fulfillment center employees in its proposed union. In doing so, they touched off a protracted battle that could delay an election for weeks and damage labor organizers’ chances of victory.

An NLRB adjudicator rejected the union’s request to punt the debate about the scope of the bargaining unit until after an election, clearing the way for Amazon to present an argument for why most of its employees—including temporary seasonal workers—should be considered part of the eligible union pool.

Union lawyers protested, saying the inclusion of seasonal workers would make it harder to organize the facility.

“This is sort of a moving target for us—we don’t know exactly what the number of seasonal employees are, and that causes great concern,” RWDSU attorney Richard Rouco said.

The union last month proposed a bargaining unit of 1,500 full-time and part-time employees at the Bessemer, Ala., warehouse but excluded truck drivers, temporary and seasonal employees, and maintenance and robotics employees, among others.

The NLRB said this week that the union had met the 30% threshold of worker support to trigger an election. But in documents filed with the board, Amazon said more than 5,700 employees should be covered by such a bargaining unit, alleging that the union probably lacked the requisite signatures.

“Generally speaking, the longer it takes between the filing of a petition and the actual election, the more advantage the employer has in an anti-union campaign,” said Mark Gaston Pearce, a former Democratic NLRB chair who watched Friday’s hearing.

‘Micro-Unit’ Standard

Amazon stands to benefit from a 2017 decision by the Republican-controlled NLRB making it easier for businesses—and harder for unions—to manipulate the size and scope of bargaining units.

In the case, PCC Structurals, Inc., the board adopted a legal standard making it more difficult for organized labor to carve out smaller units, known as “micro-units,” within a larger workplace. It overturned an Obama-era decision that prevented employers from challenging the size of a bargaining unit unless they could demonstrate that the workers had “overwhelming” commonalities with the rest of the workplace.

The current standard, in effect before the Obama board’s 2011 decision, uses a less-stringent legal test to determine whether union organizers must win over a larger population of workers than the one they had proposed.

Harry Johnson, a former Republican NLRB member who represents Amazon, during the hearing Friday walked through every step of the process in a fulfillment center, where items are stowed, packed and picked, emphasizing that seasonal workers and permanent workers do the same tasks.

“Because the facility is very integrated as the evidence is going to show, there are a number of positions that we think should be added,” Johnson said.

Amazon has managed to avoid successful union drives in its U.S. warehouses, despite growing to become the nation’s second-largest employer behind Walmart Inc. In 2014, a group of 30 workers rejected a “micro” union bid by the International Association of Machinists and Aerospace Workers.

The company has fought union efforts. Documents leaked to news media have detailed plans by Amazon to track union activities, and earlier this year the company planned to hire two intelligence analysts to track labor organizing “threats.”

Amazon’s union war could get tougher under a Joe Biden presidency, with Democrats expected to take control of the NLRB in August 2021.

Amazon spent hours Friday questioning witnesses on workers’ responsibilities at the Alabama warehouse. The hearing is scheduled to continue Monday, though an NLRB representative warned the parties that it could be delayed indefinitely if Congress hasn’t reached a deal to avoid a government shutdown.

—With assistance from Josh Eidelson and Spencer Soper, Bloomberg News

(Updated with the hearing schedule in last paragraph. )

To contact the reporter on this story: Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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