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Punching In: Amazon Organizers Target a Potent Anti-Union Weapon

Feb. 28, 2022, 10:48 AM

Monday morning musings for workplace watchers

Captive Audience Challenges | Tweaking Unemployment

Robert Iafolla: Amazon.com Inc. was recently hit with unfair labor practice allegations that could give the National Labor Relations Board’s Democratic majority a chance to ban one of the most potent weapons used by employers to repel union campaigns.

The unions attempting to represent Amazon workers at facilities in Bessemer, Ala., and Staten Island, N.Y., filed separate charges this month claiming federal labor law violations arising from the company convening mandatory anti-union meetings.

Such “captive audience meetings,” which critics call inherently coercive, have been legal under board precedent dating back to the 1940s.

The NLRB general counsel’s office, which acts as a prosecutor in unfair labor practice charges, would need to issue a complaint based on one of the charges to put the issue on a path to the board.

Amazon is confident it complied with the law, spokeswoman Barbara Agrait said in a statement. The choice to unionize will impact everyone at that facility, so Amazon hosts “regular informational sessions” and lets workers “ask questions and learn about what this could mean for them and their day-to-day life working at Amazon,” she said.

While a win in one of the Amazon union elections would have huge significance for the labor movement, a legal challenge to a core anti-union employer tactic could have a nationwide impact on unionizing.

More than 75% of private-sector employers respond to organizing drives with aggressive anti-union campaigns, typically involving mandatory meetings where the employer makes its case against unionization, said Kate Bronfenbrenner, director of labor education research at Cornell University’s School of Industrial and Labor Relations.

“Everyone does captive audience meetings, it’s just routine,” Bronfenbrenner said.

The meetings are coercive because workers must attend, employers make dire claims about the consequences of unionization, those who question the company line can face discipline or termination, high-ranking company officials often attend and present, and union activists are pointed out for derision, she said.

Employers are barred from expressly intimidating or coercing workers during the meetings. But management messages still threaten even when companies play by the rules, said Seth Goldstein, a pro bono attorney for the Amazon Labor Union in New York.

“We all know what the game is,” Goldstein said. “Employers say ‘may’ instead of ‘shall.’ But when they say that ‘voting for the union may result in shutting down the factory,’ workers aren’t concentrating on ‘may.’ They’re concentrating on ‘shutting down the factory.’”

Roger King, an attorney for the HR Policy Association, which lobbies for employers, counters that the term “captive audience meeting” is a misnomer that unions use to discredit legitimate employer communication.

Unions have numerous opportunities to communicate with workers, King said. Employers regularly hold meetings to communicate with workers on a variety of topics, including unionization, he said.

A federal court would overturn an NLRB decision outlawing mandatory employer meetings on unionizing, likely due to conflicts with the First Amendment and employer speech rights under federal labor law, King said. “It seems that what unions are really attacking,” he said, “is speech and communication itself.”

Also Read:

Amazon Union Organizer Arrested Outside of NYC Warehouse (4)

Amazon Labor Board Settlement is ‘Crucial’ for Union Organizing

Amazon Poaches Top Business Labor Lobbyists Amid Worker Activism

Chris Marr: On the rebound from a pandemic-induced unemployment crisis, state legislatures and labor departments are playing out the perennial debate over how to manage unemployment benefits—whether generously to benefit the biggest number of laid-off workers, or conservatively to minimize the taxes employers pay into the system.

Several states have expanded benefits, at least temporarily, or looked for ways to make the application process less daunting. These include New York’s Excluded Workers Fund, which provided $2 billion in cash relief to low-wage undocumented immigrant workers who otherwise couldn’t qualify for unemployment benefits but has now run out of funds.

In Maine, lawmakers created an unemployment insurance navigator program, which launched Jan. 1 and lets worker advocates such as labor unions partner with the state agency to help people apply for benefits and look for new jobs. It was enacted as part of a broader unemployment overhaul that also made it easier for workers to get partial benefits when working part-time.

“That’s kind of an innovative program,” said Alexa Tapia, unemployment insurance campaign coordinator for the National Employment Law Project. The U.S. Labor Department is offering a handful of states grants of up to $3 million each to create similar navigator programs, among a variety of federal grant offerings aimed at making unemployment programs run more smoothly and better prevent fraud.

“We are seeing some good movement happening with UI,” Tapia added.

On the flip side, other states including Indiana and West Virginia, are advancing legislation that would cut the number of weeks that laid-off people can receive benefits, among other changes to their programs such as tougher enforcement of work-search requirements for those receiving benefits.

West Virginia’s bill would set the maximum number of weeks on a sliding scale that adjusts with the state unemployment rate, falling as low as 12 weeks during times of low unemployment and increasing to 20 weeks when unemployment is high. It’s a model that conservative groups such as the Foundation for Government Accountability are urging states to enact as a way to hold down costs and rebuild the unemployment trust funds that were depleted during the pandemic.

Tennessee enacted similar legislation in May 2021.

“As states continue to struggle with labor shortages and supply chain issues, leaders should focus on reforms that empower Americans to return to work and contribute to their communities,” Hayden Dublois, deputy research director at FGA, said in a Feb. 16 statement touting a report on unemployment indexing.

Most states pay up to 26 weeks of unemployment benefits before they expire, although a few including Florida and North Carolina have lower maximums.

But conservative-leaning states might have to balance their desire to restock their trust funds quickly against the urge to cut benefits in the long term. Guidance from the U.S. Treasury Department restricts states’ ability to reduce unemployment benefit levels if they use federal relief money from the American Rescue Plan Act to replenish their unemployment trust funds.

—We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.

To contact the reporters on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com; Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com