Spiraling inflation, the “Great Resignation,” staffing shortages, and workers’ Covid-19-related health and safety concerns make for ripe union organizing conditions. To top it off, there is a widely publicized presidential agenda seeking to make it easier for workers to form labor unions and it appears that the National Labor Relations Board’s (NLRB) general counsel is pushing to all but eliminate the need for secret ballot union elections and to limit employer opportunities to challenge union organizing tactics.
Uptick in Filings of Unfair Labor Practice Charges
For the first half of fiscal year 2022 (Oct.1, 2021 to March 31, 2022), union representation petitions filed with the NLRB increased by 57%, and unfair labor practice charges increased by 14% compared to that same time period in fiscal year 2021. Perhaps the most significant of the recent union organizing activity is the Amazon Labor Union’s April 1 victory in unionizing the approximately 8,300 workers in Amazon’s JFK8 fulfilment center in Staten Island, N.Y.
That the organizing of such a large unit was successfully carried out by current and former Amazon employees, without the resources that come from being connected with an established labor union, may well signify the first of many victories to come given the current legal and economic landscape.
We have yet to see how Amazon will respond with the rest of its estimated 1.1 million U.S. workers.
Amazon filed an objection to the Staten Island vote with the NLRB on April 8, arguing that the agency repeatedly “failed to protect the integrity and neutrality of its procedures.”
Amazon has also moved to transfer the proceedings on its objections out of the NLRB region that handled the election because the company’s objections involve regional or board agent action. It will likely be an uphill battle for Amazon to convince the increasingly pro-labor NLRB that its agents improperly interfered with the election, but it will be important because the results will likely dictate the limits of board agent conduct in what looks to be the numerous elections to come.
Just days from the Staten Island victory, workers in Amazon’s Bessemer, Ala., fulfillment center voted by mail-in ballot 993 to 875 against forming a union for a second time, with more than 400 contested ballots yet to be counted. There is also an election at another Amazon warehouse in Stated Island that is scheduled for May 2, with pending objections filed by both sides.
The growing worker mentality that no company is too big or vast to be organized, bolstered by a pro-labor administration agenda, may forever change the status of Amazon’s workforce. Within a week of the Amazon Labor Union’s historic victory in Staten Island, NLRB General Counsel Jennifer Abruzzo announced that she will be asking the board to find “captive audience” meetings violate the National Labor Relations Act. Captive audience meetings, which are mandatory meetings where employers give a speech about employees’ statutory labor rights, are currently lawful and commonly used by employers during union organizing campaigns.
Abruzzo subsequently submitted a brief to the NLRB in Cemex Construction Materials Pacific LLC in which she argued that captive audience meetings violate the NLRA. Such meetings were reportedly held by Amazon and Starbucks during the recent organizing efforts.
Attempt to Reinstate the Joy Silk Doctrine
Abruzzo is also trying to make it easier for unions to organize without going through an election. In her brief in Cemex Construction, she argued for the revival of the Joy Silk Mills decision, a doctrine that the NLRB has not followed since 1969. If reinstated, the NLRB will be able to order an employer to recognize and bargain with a union, without an election, in situations where the union presents evidence of majority support.
Among other major impacts, the reinstatement of this doctrine would effectively render meaningless an employer’s ability to voluntarily recognize a union; and elections would be limited to situations where the employer demonstrates that there is a good-faith doubt about the union’s majority.
While the NLRB has not yet ruled upon Abruzzo’s positions, it will become significantly more difficult for Amazon, Starbucks, and other employers, big and small, to stave off union organizing campaigns if they are adopted.
What will be equally interesting is to see how Amazon, Starbucks, and the like will approach collective bargaining if the union elections still stand after the legal challenges are settled. Will they play “hard ball” and prolong the negotiations process?
Consumers might not react kindly to their two-day Prime shipping being delayed due to strike activity, or their mobile-order lattes being late because of work slowdowns. This could backfire on both sides. Even if the bargaining is not contentious, the public will likely bear the brunt of any increased labor costs through higher prices for goods, services, and subscriptions.
In the meantime, though, we must wait and see how the next few months (and years) unfold.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Sharon N. Berlin is a partner in the Melville, N.Y., firm of Lamb & Barnosky LLP. She is the immediate past chair of the New York State Bar Association Local and State Government Law Section and was a co-editor-in-chief of the Bar Association’s treatise, Public Sector Labor and Employment Law (3rd Edition).
Alyssa L. Zuckerman is a partner in the Melville, N.Y., firm of Lamb & Barnosky LLP. She is a member of the executive committee of New York State Bar Association Labor & Employment Law Section and the first vice president of the Long Island Chapter of the Labor and Employment Relations Association.