For union battling Amazon, victory could bring a stalemate

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For the union trying to organize nearly 6,000 workers at an Amazon warehouse in Alabama, a successful election in the coming weeks could only be the beginning of the struggle to reach a collective bargaining agreement with the company.

Workers at the fulfillment center in Bessemer, a Birmingham suburb, have been voting since late February on whether to be represented by the Retail, Wholesale and Department Store Union — an election that has drawn nationwide attention because it could result in Amazon’s first unionized facility in the U.S. The National Labor Relations Board will begin tallying the votes on Tuesday.

But initial collective bargaining agreements usually take years to hammer out at the negotiating table. More than half of workplaces that form unions are unable to reach an initial contract within a year, according to the left-leaning Economic Policy Institute, and 37 percent of newly formed private-sector unions still have no contract after two years.

“It’s so difficult to hold an employer accountable,” said Celine McNicholas, director of government affairs and labor counsel at EPI. And even if the union engages in “this protracted legal battle, you know the penalty that the employer is facing is quite frankly minimal.”

The outcome of the election is being so closely watched because the stakes go far beyond this warehouse. If the campaign in Republican stronghold Alabama is successful, it could spark more organizing efforts at Amazon and other large retailers across the U.S. If it fails, it could galvanize Democrats’ fight to push through one of the broadest expansions of collective bargaining rights in nearly a century. At the same time, it could embolden many companies to take an even harder line against organized labor.

That’s why the Amazon organizing effort has taken on such broad significance politically. Even before the votes in Bessemer are counted, President Joe Biden, other Democrats and their labor allies are using the election to push for their union-friendly overhaul of federal labor law.

If Amazon were to drag its feet on an initial contract, the union could call on the NLRB to order management to bargain with the workers. However, that legal process can span months, even years, especially if the company were to appeal any enforcement moves from the labor board.

Amazon can legally refuse to bargain with the union if it challenges an issue related to the election. The company already sought to delay the union vote and require that ballots be cast in person rather than by mail. The NLRB approved a seven-week mail-in ballot election, instead of an in-person election that typically takes place over a few days, due to the Covid-19 pandemic.

Heather Knox, a spokesperson for Amazon, said in response: “RWDSU membership has been declining for the last two decades, but that is not justification for its president, Stuart Appelbaum, to misrepresent the facts. Our employees know the truth—starting wages of $15 or more, health care from day one, and a safe and inclusive workplace. We encouraged all of our employees to vote and hope they did so.”

The company declined to say how it would respond if the workers voted to unionize.

Union leaders said they are prepared for Amazon to dig in for a fight and are already using their effort in Alabama to promote the legislation in Congress, known as the PRO Act, that would make it easier for unions to organize.

“I wouldn’t put it past Amazon to try to come up with any excuse that it could find to overturn an election where workers win,” said Appelbaum, the union president. “There has never been a greater argument for labor law reform and the PRO Act than this election.”

Whether the e-commerce giant could go as far as to shutter the facility in response to a successful union election is murky.

“The law is clear about one thing, and that is that a business can completely, completely, 100 percent go out of business, even just to avoid a union,” said Andrew MacDonald, a partner at Fox Rothschild LLP in Philadelphia. “But there’s a less clear line, more of a gray area, where the company, partially, says shut down a plant or shut down one facility while others remain open.”

Amazon could also face trouble if it were to transfer some operations from Alabama to a non-unionized fulfillment center elsewhere.

MacDonald pointed to a 2011 labor dispute with Boeing Co., which decided to transfer a second production line for its 787 Dreamliner from a unionized facility in Washington to a non-union shop in South Carolina. The acting general counsel of the NLRB issued a complaint against the company, alleging the move violated federal labor law.

In that case, “the union in Washington and the labor board saw that as being motivated to avoid the union, not just making a business decision of where to make the plane,” MacDonald said.

The union later withdrew its complaint against Boeing after striking a new deal with the company governing other production in Washington.

If a company and a union are unable to reach an initial collective bargaining agreement after a successful organizing effort, provisions in the PRO Act would require them to go to mediation and arbitration.

“The law permits an employer to bargain essentially in bad faith,” said McNicholas. “The remedies are so weak that you can essentially drag your feet through the bargaining and frustrate the workforce such that they’re not getting any contract in the first year.”

Opponents of the PRO Act, including the U.S. Chamber of Commerce, argue that the legislation tilts too far in favor of unions and would harm the economy by costing jobs.

The unusual public attention on the Bessemer union drive has put both political and consumer pressure on Amazon that could keep the company in line, union and worker advocates say.

“Unlike most collective bargaining, this attempt to achieve a first contract is going to be the focus of a lot of public attention,” said Appelbaum. “I think that Amazon is going to be held accountable under the glare of the public spotlight. And that’s going to restrict what it is going to be able to do to prevent workers from getting a contract.”

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