Why Amazon Insisted On An In-Person Union Election During A Raging Pandemic

Thousands of Amazon warehouse workers in Alabama will receive ballots next week to vote in a potentially historic union election. They will be casting those votes by mail, over the strenuous objections of Amazon, which is facing its most substantial unionization threat on U.S. soil to date.

The online retail giant spent weeks fighting the mail-in balloting that the National Labor Relations Board, the federal agency that oversees union elections, ordered last month. Union elections are normally held in person, but the NLRB is currently conducting most by mail due to the raging pandemic that has killed more than 450,000 Americans.

Amazon insisted that workers show up in person at the Bessemer, Alabama, warehouse to cast their votes on whether to join the Retail, Wholesale and Department Store Union (RWDSU). The surrounding county had a COVID-19 test positivity rate above 12% last week, more than double the 5% rate the NLRB has deemed reasonable to hold in-person union elections.

Between last March and November, 90% of union elections were conducted by mail, to protect not just workers but the NLRB staff who supervise the elections.

The NLRB shot down Amazon’s case at every turn, including on Friday, when it denied Amazon’s latest effort to delay the election. Nearly 6,000 ballots are scheduled to go out Monday morning.

Given the public-health implications, several labor experts said they found Amazon’s posture appalling.

“It’s embarrassing to me,” said Celine McNicholas, a former special counsel at the NLRB now with the Economic Policy Institute. “It’s incredibly sad for those of us that follow this stuff.”

Heather Knox, an Amazon spokesperson, defended the company’s position, saying in an email that on-site voting would assure a “valid” and “fair” election with higher participation.

“Amazon provided the NLRB with a safe, confidential and convenient proposal for associates to vote onsite, which is in the best interest of all parties ― associate convenience, vote fidelity, and timeliness of vote count,” she said. “We will continue to insist on measures for a fair election, and we want everyone to vote, so our focus is ensuring that’s possible.”

A Bloomberg Law analysis from October suggests Amazon is correct that turnout is actually higher when elections are done in person. While that may seem counterintuitive, it makes sense: Unlike with political elections, workers are already going to the voting site anyway because of their jobs. But experts said Amazon’s push for in-person voting may be less about turnout than the advantages it could bring Amazon.

Employers and unions often spar over the details of an election after a petition for one has been filed, particularly which employees would be considered members of the union, and hence eligible to vote. In this case, Amazon successfully expanded that group, known as the bargaining unit, to include seasonal employees. That could benefit Amazon by diluting whatever strength the union had already solidified within the plant’s full-time employees, and forcing the union to spend time organizing other workers who may feel less invested in the job.

The dispute over using mail-in ballots provided Amazon with something else to argue about.

McNicholas described the thinking as “delay, delay, delay.” An employer’s objection assures a volley of briefs and counterbriefs to be filed, potentially giving Amazon more time to mount its opposition campaign, especially if the election ends up postponed.

Amazon hired Harry I. Johnson, a former Republican member of the NLRB, to help make its case. In a Jan. 7 brief obtained through a public records request, Johnson and a colleague argued that a mail-in election would lead to logistical challenges and lower turnout, and ultimately disenfranchise “not tens or hundreds but thousands of Amazon’s associates.”

Amazon has insisted it could safely conduct the election outdoors, using its own employees and an augmented reality program to enforce social distancing. That camera-based program, known as “distance assistance,” indicates when workers are too close to each other. In a board hearing, Amazon even suggested it would put up NLRB staff in a nearby hotel on its own dime to facilitate an in-person vote.

But Johnson’s brief also delved into what may be a greater concern for Amazon than voter disenfranchisement: “Amazon’s right to communicate with its employees during what will likely be a lengthy mail-ballot period.”

So long as they don’t make illegal threats, employers can discourage workers from unionizing through an array of tactics, including anti-union flyers and websites, one-on-one talks with supervisors, and so-called “captive audience” meetings, where a manager or consultant delivers a speech and attendance is mandatory. Mail-in balloting can leave employers with less time to hold those meetings, due to something known as the 24-hour rule.

Under the rule, employers have to knock off the anti-union talks 24 hours before the first ballots are cast, to preserve what are supposed to be, in theory, “laboratory conditions” free from interference. For elections by mail, that cutoff comes a day before ballots are sent out. But because Amazon workers will have until the end of March to return their ballots, some workers could be voting up to seven weeks after Amazon was last able to influence them legally.

In a close election, that time lag could be critical. As The Washington Post recently reported, Amazon has pulled out all the stops to dissuade the Bessemer workers from voting in favor of the union. The company has been texting the workforce five times a day, hosting anti-union meetings on-site and even putting up posters in bathroom stalls.

The use of mail-in ballots could force the company to pull back on those efforts much sooner than it would have liked.

The Bloomberg Law analysis found that unions performed only marginally better in mail-in elections than in on-site elections, winning 72.2% versus 70.5% of the time. But depending on a company’s strategy, the home-turf advantage of in-person voting could be significant.

Elections at large workplaces are normally conducted over the course of several shifts, to allow everyone a convenient time to vote on a workday (Amazon proposed up to four days for on-site voting). The site includes an observer from both the employer and the union. Even though electioneering is banned at that point, workers can feel pressure under the gaze of colleagues and superiors.

Both the union and the employer would have spent weeks trying to figure out where individual workers stand on unionization. In an election like this one, the one-on-one talks and captive-audience meetings would have given the company a good handle on votes, according to Kate Bronfenbrenner, a labor expert at the Cornell University School of Industrial and Labor Relations, who has spent years researching anti-union campaigns by companies.

“There’s no such thing as a secret ballot,” Bronfenbrenner said, speaking about employers generally. “They have already identified exactly which way every voter will vote.”

That knowledge can be helpful when the time comes to cast ballots. Jane McAlevey, a union organizer and author, said this moment is the employer’s “last shot, and a real shot,” to tip votes into the “no” column.” It can be especially effective on workers who are on the fence or have only soft support for the union.

“What do you do when you want to intimidate workers? You force them to walk through a gantlet of managers who are looking at them,” said McAlevey, who has served as a union rep at many on-site elections over the years. “There’s what’s legal, and there’s what employers get away with.”

McAlevey said employers will often choreograph a detailed plan with the help of consultants, right down to making sure a particular observer is representing the employer when a certain group of voters goes to cast their ballots. In especially heated elections, she compared the atmosphere to what Black voters experienced going to the polls in the Jim Crow era.

“It’s the same kind of intimidation that can play out with management and the thugs that they bring in,” she said.

The union seeking to organize the Alabama plant sees echoes of the recent GOP effort to force in-person voting for the 2020 presidential election. Stuart Appelbaum, the RWDSU’s president, told HuffPost that the retailer was “borrowing a page from Trump’s playbook” by trying to make people risk their health in order to have their voices heard.

“Amazon is showing a total disregard for the health and safety of their employees while at the same time harassing them with anti-union propaganda even in the bathrooms,” he said in an email from a spokesperson.

Unions have struggled to notch big victories at large plants in the South, losing highly publicized elections at Volkswagen in Tennessee, Nissan in Mississippi, and Boeing in South Carolina. The Amazon election may be another test of organized labor’s clout in an area unwelcoming to unions, but it may be even more significant because of its implications for the world’s largest online retailer.

A union victory here would almost certainly spark more organizing efforts at other warehouses, by demonstrating it’s not only possible to defeat a behemoth like Amazon, but to do so in Alabama. Meanwhile, if Amazon can quash the effort ― and especially if it can do so by a wide margin ― it could help chill other campaigns before they get started.

The union needs a simple majority of votes cast to win. The RWDSU says it amassed over 3,000 union-authorization cards in Bessemer by mid-January, suggesting union support among more than half the workforce. But unions typically want a larger share of workers on their side going into an election, under the assumption the employer will peel some of them away. The union’s organizing will have to continue for weeks to grow its support.

When the NLRB rejected Amazon’s effort to block mail-in voting for good on Friday, the board ruled that Amazon raised “no substantial issues” that warrant review in the case. The board’s order may seem like a setback, but Amazon had essentially nothing to lose by pursuing it.

“In this environment, Amazon is doing everything it can right now,” said Bronfenbrenner. “If these workers win … it’s going to really build a strong union. And that’s something Amazon has not dealt with.”