Amazon interfered with a union-certification vote, and a second election should be held, a National Labor Relations Board (NLRB) official wrote in a report released yesterday. Amazon’s anti-union misconduct made a “free and fair election… impossible,” the report said.

A majority of Amazon workers at a fulfillment center in Bessemer, Alabama, voted against certifying a union in April. The Retail, Wholesale, and Department Store Union subsequently filed a complaint with the NLRB and was able to convince the hearing officer that Amazon interfered with the election.

“[T]he evidence demonstrates that the employer’s conduct interfered with the laboratory conditions necessary to conduct a fair election,” NLRB attorney and hearing officer Kerstin Meyers wrote. The report continued:

More specifically, the conduct which interfered with the result of the election relates to the employer’s polling of employees by distribution of “vote no” paraphernalia in the presence of supervisors and managers, as well as the employer’s unilateral decision to cause the United States Postal Service to install a generic unlabeled mail collection box less than 50 feet from the main entrance to its facility, at a location suggested by the employer and immediately beneath the visible surveillance cameras mounted on the employer’s main entrance. While this is a case of first impression, the employer’s conduct in causing this generic mail receptacle to be installed usurped the National Labor Relations Board’s exclusive role in administering union elections. Notwithstanding the union’s substantial margin of defeat, the employer’s unilateral decision to create, for all intents and purposes, an onsite collection box for NLRB ballots destroyed the laboratory conditions and justifies a second election.

Amazon to appeal

The ruling is not final, so a second election is not yet definite. The NLRB process allows appeals and will give Amazon several “opportunities for delay” even though its mailbox-related conduct was “pretty egregious,” University of North Carolina professor of labor and employment law Jeff Hirsch wrote in a Twitter thread yesterday. “The next step is for the hearing officer’s recommendation to be reviewed by the head of the Atlanta Region,” he wrote. The regional director could order a new election, and Amazon has already said it will appeal.

“Our employees had a chance to be heard during a noisy time when all types of voices were weighing into the national debate, and at the end of the day, they voted overwhelmingly in favor of a direct connection with their managers and the company. Their voice should be heard above all else, and we plan to appeal to ensure that happens,” Amazon said in a statement issued yesterday.

Before the regional director weighs in, the parties have until August 16 to file objections to the NLRB hearing officer’s report. Though it was a good result for the union, the NLRB official rejected some of the union’s claims. For example, the union objected to Amazon’s hiring of additional police, but there was “no evidence that any of the police officers engaged in activity related to the election or the union’s campaign or otherwise engaged in conduct intended to intimidate voters,” Meyers wrote.

The results were 1,798 votes against certifying the union and 738 for the union. There were also “505 challenged ballots, a number that was not sufficient to affect the results of the election,” Meyers noted. Over 2,000 employees did not vote, and Meyers wrote that it is possible they were “influenced” by Amazon’s misconduct.

“Free and fair election was impossible”

Meyers found that Amazon’s installation of a mailbox “at a location that reasonably appeared to be within the viewing field of the employer’s multiple security surveillance cameras… so tainted the election that a second election is necessary.” It was “clear that Amazon, not USPS,” chose the site of the mailbox, the report said.

The NLRB “safeguards the administration of elections and does not delegate any functions to the parties,” and “the mere appearance that a party has control over the election… destroys the laboratory conditions necessary to conduct an election,” Meyers wrote.

Meyers’ recommendation to rerun the election “is based upon the manner in which the mail receptacle was installed that created the impression that the employer could unilaterally establish procedures for the election and cast doubt on the [NLRB’s] authority and control over the election procedures,” she wrote, continuing:

The situs of the CBU [USPS cluster box unit] created the impression that the employer was surveilling employees’ Section 7 [organizing] activities, and the inclusion of the employer’s campaign propaganda on the tent leading to the [mailbox] further instilled the impression that the employer had created its own voting location without any authorization from the board. By manufacturing a situation that created the impression that the board had, either voluntarily or involuntarily, ceded its authority for collecting ballots and establishing procedures for conducting the election, the employer interfered with the election proceedings. Under the circumstances, where the authority of the board was compromised by the conduct of a party, and that same conduct impacted employees and was coupled with other transgressions that interfered with employee free choice, a free and fair election was impossible. Under the circumstances, I recommend that a second election be ordered.

Anti-union materials

Meyers also wrote that Amazon “committed objectionable conduct” by distributing “anti-union materials in the presence of managers.”

“[T]he misconduct herein occurred on numerous occasions at untold number of meetings,” Meyers wrote. “Virtually all of the bargaining unit employees were subjected to the misconduct, as these were mandatory employee meetings.”

“[T]he materials were placed in plain view of the managers, such that employees were forced to make a discernible choice to retrieve the materials, or not, under the observation of employee relations and human resources managers,” Meyers also wrote. Whether Amazon tracked which employees took the materials is not relevant to the question of “whether its conduct could reasonably cause an employee to perceive that the employer was trying to discern their support for, or against, the union—as it is the act of attempting to discern employee support that ‘tends to cause fear of reprisal in the mind of employees… and, therefore tends to impinge his Section 7 rights,'” Meyers wrote.

The large margin of the vote is not a reason to stick with the results of the first election, Meyers wrote. The report said:

Over 2,000 employees did not vote in the election, a sufficient number to affect the results of the election. While it is unknown why these employees refrained from voting, there is, at the very least, the possibility that the employer’s misconduct influenced some of these 2,000 eligible voters.

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