Amazon’s Loss in Case Over Union Tactics Set to Embolden Workers

Marijuana handouts. Staged arrests of union leadership. Worker intimidation.

Amazon.com Inc. accused a union of engaging in such tactics as it attempted to organize workers at a Staten Island, N.Y., fulfillment center in 2022. The online retailing giant argued these actions should nullify the Amazon Labor Union’s historic election win at the JFK8 warehouse.

But the National Labor Relations Board’s Democratic majority recently shot down those legal objections to the election, upholding the legitimacy of Amazon’s first-ever US union. That ruling could encourage similar union organizing activity that employers may have difficulty challenging, attorneys and labor observers say.

“It would inspire them to be more aggressive,” said Susan Schurman, a labor studies professor at Rutgers University. “There’s a pretty unanimous opinion among American unions that they have to organize Amazon.”

‘Objectionable Conduct’

The Amazon Labor Union won its election at the JFK8 warehouse by 500 votes in April 2022, sparking extensive litigation, unsuccessful unionization efforts at several other Amazon facilities, and a separate court challenge of the board’s constitutional authority.

Amazon alleged in its objections that ALU had intimidated and coerced workers into voting for the union. This included claims that the union: disrupted company meetings to dissuade workers from organizing, flouted orders to stay off company property, threatened and harassed a former union supporter in front of other workers, and lingered in the no-electioneering zone while polls were open on election day.

It also said ALU “planned and strategized” to have the union’s president Christian Smalls arrested during the campaign to sway voter opinions.

On top of all that, Amazon alleged the union gave out “large amounts” of marijuana to JFK8 employees in exchange for their support.

Amazon and the union didn’t respond to requests for comment.

In its Aug. 29 decision, the NLRB majority found that none of the evidence provided by Amazon would have required a rerun election. The company failed to show that the union’s actions should be considered “objectionable conduct” that would influence the outcome of the vote, it said.

On the marijuana allegation specifically, the board said it couldn’t substantiate the claim but added it wouldn’t necessarily have been unlawful, anyway.

“Even though marijuana is an illegal substance for federal purposes, it was legalized in New York at the time of the election, and the marijuana was of limited monetary value,” the board wrote.

Demonstrators during an Amazon Labor Union rally in the Staten Island borough of New York on April 24, 2022.

Photographer: Victor J. Blue/Bloomberg via Getty Images

Some management-side attorneys condemned the alleged behavior.

“Those kinds of shenanigans by either side, management or union, shouldn’t be tolerated,” said Thomas Mandler, an attorney at Akerman LLP who represents employers, referring to the purported marijuana gifts. “It’s like an employer handing out a $10 bill— it’s a bribe. I think if the union does it, it should be just as bad as if the employer did it.”

The ruling could embolden unions to use similar tactics, said Patricia Campos-Medina, executive director for the Worker Institute at Cornell University.

“That decision empowers other workers to say, ‘Okay, the NLRB will stand with us when we organize, even if it takes a long time,’” she said. “It is empowering workers to act on the rights that they already have.”

Standard of Proof

The case hinged on the preponderance of evidence standard, which requires evidence demonstrating that claims are “more likely than not” to be true.

This is the standard used mostly in civil cases and demands less certainty than the “clear and convincing” or “beyond a reasonable doubt” standards.

It has become increasingly difficult for employers to gather evidence of alleged union wrongdoing during the election process, since they risk violating workers’ right to surveillance-free organizing, Mandler said.

Photo or video evidence is more likely to stand up in court, as opposed to witness statements, Mandler added.

“Gathering evidence can be a really touchy, tricky thing to do,” he said. “You don’t want to engage in surveillance but if you see someone handing out a bribe or doing some other things they shouldn’t be, take photo evidence.”

To the Judiciary

NLRB Regional Director Teresa Poor has already filed an administrative complaint against Amazon for its refusal to bargain with ALU, alleging its failure to negotiate is intended to challenge the union’s victory.

Employers aren’t legally able to seek judicial review of elections cases. The only mechanism for companies to contest an election is to refuse to bargain with the union, prompting an unfair labor practice complaint that could eventually make its way to a federal court.

Poor is seeking remedies to compensate workers for the lost opportunity to bargain, pay the union’s attorneys’ fees, and to extend the certification year, which would protect the union from any efforts to oust it during that period.

Separately, Amazon sued the NLRB in Texas federal court—a more aggressive step than following the traditional yet lengthy path to challenge an election. The company says that the labor board “violates bedrock constitutional principles of separation of powers” by serving as both prosecutor and judge. It also contends that NLRB members are unconstitutionally protected from being fired by the president, and that the quasi-judicial structure of the agency undermines employers’ right to a jury trial under the Seventh Amendment.

“I’m sure they’re looking at the Supreme Court these days and seeing a conservative body that’s going to be pro-employer but how many years is it going to take to get you there and how many hundreds of thousands of dollars?” Mandler said. “Amazon is going to be willing to put up the big bucks here because one facility for them may not matter but the other facilities will.”

This is the first time Amazon has challenged the NLRB’s constitutionality in court, joining Elon Musk‘s SpaceX and other businesses looking to leverage a federal judiciary that’s increasingly willing to chip away at agency power.

Even if the company doesn’t win, delay can be a powerful weapon. And there may be plenty of time to wait.

“You should assume it’s getting appealed all the way up,” Schurman said.

The case is Amazon.com Services LLC, N.L.R.B., No. 29-RC-288020, 8/29/24.