The preliminary decision by a National Labor Relations Board regional director on Thursday could make it harder for US businesses to distance themselves from labor-law liability by outsourcing front-line work to contractors, if it withstands a lengthy legal process.
Still, it opens the door for the International Brotherhood of Teamsters and other unions to organize Amazon drivers nationwide—and force the company to come to the bargaining table—two things the online retailer will likely fight in court.
“It could affect the whole franchise world,” said Cathy Creighton, a former union attorney now with the Cornell University School of Industrial and Labor Relations. “It sends a message loud and clear to anyone trying to contract to avoid their obligations under the law.”
Joint Employment
The regional director, Mori Rubin, found that Amazon was the legal employer for a group of delivery drivers near Los Angeles, teeing up a landmark win for unions in the years-long fight over joint employer relationships.
While Amazon deliverers drive company-branded vans and wear uniforms, they are in many cases not Amazon employees. Instead, they ostensibly work for intermediaries known as “delivery service partners.” The company says it has more than 1,700.
The regional director determined that Amazon and a DSP, as joint employers, unlawfully failed to bargain over the effects of Amazon canceling the delivery contract, and fired union employees, labor board spokeswoman Kayla Blado said in an email. Unions are typically entitled to bargain for severance, advance notice, and other conditions when jobs are on the chopping block.
Rubin also found that Amazon made unlawful threats, held mandatory anti-union meetings, and “failed to furnish relevant information to the union,” Blado said. The company could be required to reinstate the workers, provide back pay, and bargain with the Teamsters, if the determination stands.
The parties were informed of the decision by Rubin’s office, Blado said. A written record hasn’t been released publicly.
Union Recognized
The delivery partner in question, Battle-Tested Strategies in Palmdale, Calif., last year voluntarily recognized several dozen workers who sought to unionize with the Teamsters. The owner, Johnathon Ervin, later had his contract canceled by Amazon, leaving the workers unemployed.
Ervin has said in interviews that Amazon only began questioning the company’s performance after it learned that his drivers were planning a walkout over unsafe working conditions. Amazon terminated his contract ten days before he recognized the union.
Rubin dismissed allegations of retaliation against Amazon in connection with the canceled contract, Blado said.
Ervin has also said Amazon exerted direct control over his employees, including two instances where the company fired workers without telling him.
“This monumental victory resonates not only with Battle-Tested Strategies but also with every Amazon subcontractor and employee who has felt the heavy hand of intimidation and bullying by Amazon,” Ervin said in a statement. “This is why I voluntarily recognized their right to unionize.”
The finding was made under a Trump-era standard for determining joint-employer liability. The current labor board dropped efforts to write a more union-friendly standard earlier this year after the US District Court for the Eastern District of Texas vacated the latest rule. But it didn’t stop Rubin from finding that Amazon was a joint employer.
Amazon downplayed Rubin’s determination, and maintained that the Teamsters claims are unfounded.
“As we have said all along, there is not merit to the Teamsters’ claims,” company spokeswoman Eileen Hards said in a statement Thursday. “If and when the agency decides it wants to litigate the remaining allegations, we expect they will be dismissed as well.”
Long Road
The NLRB regional director’s preliminary determination is the first step in a long process. If Amazon and the Teamsters don’t reach a settlement, the regional director will issue a complaint, prompting a hearing with an administrative law judge. Whoever loses that decision will likely appeal to the full NLRB, then to federal court—a process that could take several years.
“This is monumental, and hopefully the board acts expeditiously,” said Julie Gutman Dickinson, a partner at Bush Gottlieb and outside counsel for the Teamsters. “With this case, we have broken their sham model.”
The case, she added, “illustrates loud and clear that Amazon is an employer of the DSPs.”
The determination is the latest in what some business groups see as an aggressive pattern of enforcement by NLRB General Counsel Jennifer Abruzzo. Employer-side advocates see efforts to regulate joint employment as a threat to business-to-business relationships.
“Too often this board has decided the outcome it wants without the factors or authority to underpin that preordained outcome that satisfies its thinly veiled political motives,” Matt Haller, president of the International Franchise Association, said in a statement.
Labor Clashes
Amazon has had a long and adversarial relationship with organized labor, and with the NLRB.
In February, the company argued in a legal filing that the board was unconstitutional, echoing arguments from Trader Joe’s and
The board nullified a 2021 union election at a Bessemer, Ala., warehouse, led by the Retail, Wholesale and Department Store Union, concluding that Amazon intimidated workers and pressed them to cast ballots in a newly installed mailbox on the property. The results of the second election are still pending before the board.
One warehouse in New York successfully unionized on its own in 2022—the only US location to do so—but has struggled to expand amid infighting. Workers at the Staten Island location elected a new slate of leaders after joining with the Teamsters in June, seeking to grow its organizing muscle.
The Teamsters have targeted several facilities after adopting a resolution in 2021 to make organizing Amazon a top priority, but they have yet to call for an election.
The union recently won a court battle to picket an Amazon air cargo facility in Kentucky, an anchor of the company’s next day delivery efforts.
Former Battle-Tested Strategies employees, who had to find new jobs after Ervin lost his contract, were still working to make sense of the regional director’s determination.
“I didn’t think this was going to happen—I thought it was going to take a lot longer,” said Jeffrey Cerna, one of the drivers out of work.
Cerna has been doing freelance graphic design in addition to picketing, for which the Teamsters offer modest payments. He said he’s hopeful he’ll eventually get back pay.
“I’m expecting they’re going to recognize us now or see us as workers,” he said. “I don’t really know what’s next.”
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