The recommendation strikes a serious blow to Amazon, which enjoyed a decidedly lopsided victory in the election earlier this year.  As this blog reported in April 2021, 1,798 Amazon employees voted against the Retail, Wholesale and Department Store Union (RWDSU) while only 738 voted for the RWDSU.  Now, this decisive victory is being attributed to labor law violations, giving RWDSU the chance at a “do-over.”

Specifically, the hearing officer’s report found that Amazon’s efforts to have the U.S. Postal Service install a mailbox outside of its Bessemer, Alabama fulfillment center usurped the NLRB’s role in administering union elections and prevented a fair vote.  Further, the presence of security cameras near the mailbox site gave the impression that the employees were under surveillance, according to the hearing officer.  The hearing officer also found that Amazon distributed “vote no” pins and other anti-organizing paraphernalia to employees while in the presence of managers and supervisors, creating a coercive environment.

The hearing officer’s report is only the first step in resolving the RWDSU’s objections to the April 2021 election.  The next step is for the NLRB’s regional director to adopt or reject the report.  After the regional director makes a determination, either party can appeal to the NLRB.  The NLRB will soon change majority, with a period of Democratic control anticipated to begin this fall.

Stuart Appelbaum, President of RWDSU, was neither shy nor slow in releasing a statement on the matter:  “Throughout the NLRB hearing, we heard compelling evidence how Amazon tried to illegally interfere with and intimidate workers as they sought to exercise their right to form a union.  We support the hearing officer’s recommendation that the NLRB set aside the election results and direct a new election…Amazon’s behavior throughout the election process was despicable.  Amazon cheated, they got caught, and they are being held accountable.”

Maria Boschetti, an Amazon spokesperson, countered in an emailed statement that the company plans to appeal the report.  Boschetti explained, “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.”

Boschetti is right to note the national attention the election received.  As this blog reported in April, RWDSU’s efforts received bipartisan support from President Joe Biden (D), Senator Marco Rubio (R-FL), and Senator Bernie Sanders (I-VT).  National attention will likely be directed to Amazon’s appeal and, if it occurs, the second election.

This blog previously noted that the results of the April 2021 election suggested that successful union organizing, particularly in large unions with public and political support, is not a foregone conclusion.  Of course, this is still the case.  However, labor professionals would do well to keep their eyes on the Amazon-RWDSU saga.  It will likely provide instructive examples of how employer actions during organizing campaigns can later be found to have improperly affected the results.

The Regional Director analyzed the community of interests that were common and that were distinct as among the 87 tool and die technicians on the one hand and those of the 4,200 who were excluded from the IAM’s petition on the other.  The factors reviewed included:

• Departmental Organization and Common Supervision
• Interchangeability and Contact among Employees
• The Nature of Employee Skills and Functions
• Degree of Functional Integration
• Terms and Conditions of Employment

All of the interests of the two groups were common, except the 87 tool and die technicians have specialized welding and grinding expertise that the other employees don’t have or use.  According to the Regional Director, this one difference among the groups was not enough to save the micro-unit petition.

Accordingly, the Regional Director concluded that the appropriate unit was all 4,300 production and maintenance employees.  The Regional Director gave the IAM two business days to show that at least 30% of the 4,300 were interested in supporting the IAM.  Alternatively, the IAM has the right to request review of the Regional Director’s decision by the NLRB in Washington, D.C.  In a statement released on June 14, the IAM said that it would request review by the NLRB.  By the time the case reaches the NLRB for a decision, President Biden’s appointees will likely dominate the NLRB, and this will be the first micro-unit test for the new Biden NLRB.

In particular, the evidence in the case was that union representatives had called Company employees and asked several questions.  The question the NLRB focused on, however, was whether the employees needed help in getting the ballot “sent back,” which a reasonable employee could understand was an offer to “collect the ballot in order to mail it.”

The NLRB unanimously held that soliciting the employee in this manner was objectionable conduct and could be enough to set aside the election.  First, solicitation of mail ballots often involves direct disregard for voting instructions (voting instructions require that a voter not allow anyone else to handle his/her ballot).  These instructions, the NLRB explained, maintain the integrity of mail-ballot elections by protecting the secrecy of everyone’s ballot and reassuring all parties that the NLRB is in charge of the election process–not the union.  Second, the NLRB noted that solicitation suggests to employees that the soliciting party (in this case, the union) is officially involved in running the election, which is the NLRB’s job.

Despite the unanimity of this part of the decision, the NLRB did split with respect to when solicitation would be enough to set aside an election.  The majority, composed of Chairman McFerran (D), Member Kaplan (R), and Member Ring (R), held that an election would be set aside based on such conduct if the ballot solicitation affected a “determinative number of votes” – that is, enough votes to have had an effect on the election.

Dissenting in part, Member Emmanuel (R) took a stricter position.  He would have held that elections should be set aside whenever a party has solicited mail ballots, regardless of potential impact on the election.

Applying the new rule to the facts in the case, the NLRB declined to set aside the election results.  There was only evidence that solicitations affected, at most, two voters.  The union won the election by at least 10 votes.  Therefore, the NLRB reasoned, the improper union conduct would not have been enough to change the results of the election.  The NLRB noted that the employer did not allege that the news of ballot solicitation had been widely disseminated in the bargaining unit or that the union had engaged in a “pattern and practice” of soliciting ballots.

Given the dramatically increased use of mail ballot elections at the NLRB during the course of the Covid-19 pandemic, the decision will be a critical one for labor professionals on both the union and management sides.  Parties to such elections should be mindful of the new rules, particularly when it comes to handling of the mail-in voting period.

Although Republicans currently outnumber Democrats on the panel by a 3-1 margin, Wilcox’s confirmation will further the Biden Administration’s aim to reclaim a majority on the five-seat panel later this year.  As is tradition, Democrats also control the board chair position with President Biden having nominated Lauren McFerran to the position on his first day in office.  Democrats are poised to take the majority later this year when Republican member William Emanuel’s term expires in August 2021.  When Emanuel’s seat is filled, Democrats will hold a 3-2 majority of the Board.

Biden has moved quickly and aggressively to upend Trump-era precedent and policy at the NLRB, such as firing former GC Peter Robb (R) on the first day of the new Administration–an unprecedented move–and subsequently appointing an acting GC who rescinded several memoranda issued by Robb during his tenure.  If confirmed, Wilcox is certain to accelerate this trend.

As an attorney for Fight for $15, Wilcox sued McDonald’s, commencing a legal battle spanning several years.  The litigation thrust into the spotlight large corporations’ liability for the conduct of franchisees, contractors, and other third-parties.  McDonald’s ultimately settled for $170,000.

In a question-and-answer session posted by her firm, Wilcox said that her work with the Fight for $15 campaign is one of her proudest equal rights achievements.  Wilcox explained that she is proud of working with and representing fast food workers “who had the courage to stand up and challenge their employers’ unfair practices.”  She went on to say, “I am inspired by the evolution of unions organizing in new areas of work, the formation of worker centers and other organizations that are committed to empowering more workers, and the increased interest in equal rights in the workplace.”

For the labor professional on the management side, the implications should now be obvious if they weren’t already:  the NLRB’s pro-union, pro-labor agenda is just getting started.  And, it is accelerating.  As this blog noted earlier this year, the management-side labor professional should not expect a friendly NLRB for some time to come.

The results were remarkably lopsided, with 1,798 employees voting against the Union and 738 voting for the Union.  Although there were also 76 void ballots and 505 challenged ballots, the NLRB noted that the number of challenges is not sufficient to change the results of the election.

The election results deliver what many are calling a win for Amazon.  For its part, Amazon released a statement maintaining that “Amazon didn’t win–our employees made the choice to vote against joining a union.”

Stuart Appelbaum, President of the RWDSU, also released a statement, promising to challenge the election results.  Appelbaum asserted that Amazon “left no stone unturned in its efforts to gaslight its own employees.”  Appelbaum also claimed lies, deception, and illegal activities on the part of Amazon, demanding “a comprehensive investigation over Amazon’s behavior in corrupting this election.”  In its statement, Amazon retorted that its employees “heard far more anti-Amazon messages from the union, policymakers, and media outlets than they heard from us.”

The parties have five business days to file objections contesting the conduct or results of the election.  The Appelbaum statement says the RWDSU will do exactly that.

Leading up to the election, the Union effort received support from across the political spectrum, including President Joe Biden (D), Senator Marco Rubio (R-FL), and Senator Bernie Sanders (I-VT).  Amazon has also faced scrutiny for allegedly quashing labor activism and for what many consider its disproportionate market power and influence.

Many of Amazon’s employees at the Bessemer facility explain, however, that they voluntarily voted against the RWDSU because Amazon already provided them with relatively high pay, opportunities to advance, and good benefits.  Because of Amazon’s message of offering good jobs and competitive wages, some are seeing the election’s outcome as a vindication and a “bellwether” likely to make organized labor reconsider its efforts to represent Amazon employees.

For the labor professional, the results of this election certainly suggest that successful union organizing, particularly in large units and even with widespread public or political support, is not a foregone conclusion.  The views that matter are those of the employees voting.  And, on that issue, the Amazon results serve as a cautionary tale for other employers about considerations that at least some employees view as significant when deciding how to vote in a union election.

This is the second micro-unit test for auto manufacturers within the past few years.  In 2015, the UAW won a micro-unit election of about 160 skilled maintenance workers at the VW plant in Chattanooga.  But, the UAW’s election victory stalled at the NLRB, when VW contended that the micro-unit was not an appropriate bargaining unit under the federal law.  Rather than wait for all of the litigation and appeals, the UAW dropped its micro-unit argument and filed another election petition to represent all of the VW production and maintenance workers.  The UAW lost that election.

Now, Nissan is contesting the IAM’s micro-unit argument, contending that there is no community-of-interests difference between the 87 tool and die maintenance technicians and all of the other Nissan production and maintenance technicians.  The NLRB will decide whether the IAM’s petition for election moves forward.

The Biden Presidency has thus far brought unanticipated upheavals to the NLRB.  As this blog previously discussed, President Biden, on his first day in office, fired the previous GC of the NLRB, Peter Robb (R), a Trump appointee, in an unprecedented move.  This was followed by Robb’s replacement, AGC Peter Sung Ohr, walking back many Trump-era policies by issuing rescissions of ten of Robb’s memoranda, among other actions.  If confirmed, Jennifer Abruzzo is expected to continue this pro-labor agenda.

Abruzzo is no stranger to the NLRB, having a 23-year tenure with the Board.  She previously served as deputy GC under former GC Richard Griffin (D) and as acting GC before Trump appointee Robb was confirmed in 2017.  Abruzzo most recently served as a special counsel to the Communications Workers of America.

Given the controversial nature of former GC Robb’s termination, some are expecting Abruzzo’s confirmation hearings to be contentious.  Still, Democrats will have the votes to confirm her provided none break ranks.  Her confirmation will likely do little to resolve the frustrations of employers who have raised legal challenges in NLRB cases by suggesting that President Biden lacked the legal authority to fire Robb in January 2021.

Abruzzo is expected to advance pro-labor and pro-union initiatives such as more aggressively prosecuting employers for alleged labor law violations.  In a statement released the day of Abruzzo’s nomination, the White House said, “Abruzzo will be an important member in supporting the NLRB’s work to build a stronger, more resilient, and more inclusive economy that delivers every American a fair return for their work and an equal chance to get ahead.”

For the labor professional on the management side, the nomination is simply confirmation of our prior conclusion:  do not expect much good news from the NLRB for some time to come.

Last week, the NLRB issued an order inviting interested parties to submit briefs to address what rule the NLRB should apply to evaluate the legality of an employer’s policy requiring uniforms.  The case grows out of a car manufacturer’s “team-wear” policy, which it maintained for its production associates.  These individuals work in a manufacturing environment, and are thus different from the customer-facing employees involved a few years ago in a case this blog has previously discussed.

The employer applied its team-wear policy to prohibit an employee from wearing a union shirt.  An administrative law judge found that the employer’s enforcement of its team-wear policy in this manner violated the Act.  Specifically, the judge found that employer’s team-wear policy unlawfully prohibited production associates from wearing union shirts because the employer failed to establish that team-wear policy was justified by “special circumstances,” as required under a 1945 U.S. Supreme Court decision.

In its appeal to the NLRB, the employer argues that the “special circumstances” analysis is not applicable because the policy only requires production associates to wear a particular shirt (thus prohibiting union shirts).  The employer notes that production associates were entirely free to wear union insignia on hats or other clothing.  Indeed, the employer noted that many employees had done so.

In issuing the invitation for briefs, the NLRB noted its 2010 decision, Stabilus, Inc., provides that an employer cannot avoid the “special circumstances” test simply by requiring employees to wear uniforms or other designated clothing, which would then preclude the wearing of union insignia.  The NLRB majority is asking that the briefs address two issues presented by the Stabilus decision:

1. Does Stabilus specify the correct standard to apply when an employer maintains and consistently enforces a nondiscriminatory uniform policy that implicitly allows employees to wear union insignia (buttons, pins, stickers, etc.) on their uniforms?
2. If Stabilus does not specify the correct standard to apply in those circumstances, what standard should the Board apply?

The due date for briefs from interested parties is March 15, 2021.

Chairman McFerran (D) dissented, arguing that there is no need to revisit the Stabilus decision because the 1945 Supreme Court decision is, in her view, sufficiently clear that work rules prohibiting employees from wearing union insignia are unlawful unless justified by special circumstances.  Still, Chairman McFerran acknowledged that she will consider the case “with an open mind” and thus, presumably, take any newly filed briefs into consideration.

For the labor professional, the case will be one to watch as it will likely shed light on employers’ uniform policies specifically with respect to union insignia.  Indeed, the invitation for briefs presents the possibility that the Stabilus standard will be replaced or modified.

The memorandum rescinds several general counsel memoranda issued by former GC Robb.  The memoranda rescinded range from those AGC Ohr asserts are no longer necessary, such as guidance on employee handbooks, to those that are process-oriented, and provided charged parties more transparency in connection with regional office investigations of ULP charges.

A significant number of memoranda rescinded addressed unfair labor practices by unions.  For example, GC 19-01 required unions raising a “mere negligence” defense to a duty of fair representation allegation concerning a union’s grievance handling to establish the existence of reasonable procedures or systems to track grievances.  GC 19-01 also classified a union’s failure to communicate grievance decisions and/or respond to a grievant’s inquiries as arbitrary conduct.

GC 19-04 required unions to provide the reduced amount of dues and fees for dues objectors in the initial Beck notice.  Both of these memoranda, along with eight others, are no longer in effect following AGC Ohr’s actions.

The import of the rescissions above are likely plain to the labor professional.  It does not appear that AGC Ohr will simply be a “caretaker,” keeping the case processing machinery at the NLRB running pending Senate confirmation of a new General Counsel.

Rather, the rapid rollback of GC Robb’s efforts has begun.  Indeed, AGC Ohr makes clear that more is to come:  “Future memoranda setting forth additional new policies will issue in the near future.”  For labor professionals on the management side, do not expect much good news for some time to come.

Typically, the NLRA does not protect employees who engage in wildcat strikes.  But, exceptions exist, and the NLRB applied one here.  In this case, a group of ten employees stopped working to protest wage disparities between senior employees and new hires.  The aim of the strike was generally consistent with the union’s position on wage issues at the bargaining table.  A labor contract with a no-strike provision had expired two months earlier.

The NLRB noted that the union did not expressly authorize the strike.  But, a union steward explained the group’s actions to management and the union subsequently processed a grievance on behalf of the terminated strikers.  On these facts, the NLRB held that the employees had engaged in protected activity.  Thus, the employer’s termination of the striking employees was unlawful.

The wildcat strike portion of the opinion was not unanimous, with Member Emanuel (R) dissenting.  He argued that there was no evidence that the union supported the work stoppage.  Rather, he would have found that the employees who engaged in the work stoppage were presenting their own demands, not the union’s.  Accordingly, there was no protected, concerted activity, and the terminations of the striking employees was lawful.

The decision also found a number of unfair labor practices by the employer.  All three panel members agreed that the employer committed unfair labor practices when it unilaterally increased wages by $0.15 per hour while a collective bargaining agreement was still in effect, implemented a new wage system without giving the union an opportunity to bargain, refused to provide requested information to the union, failed to deduct and remit union dues from employee paychecks, attempted to circumvent the union by going to employees directly, and refused to bargain in good faith with the union by sending a representative without real bargaining authority.

Notably, as a result of these bargaining violations, the NLRB imposed some extraordinary remedies.  These remedies are not always used, but the NLRB found that the employer’s conduct was sufficient to warrant them.  The remedies the majority imposed included reimbursing the union for its bargaining expenses, reading aloud the NLRB’s notice to an assembled group of all employees, and issuing a bargaining order, with an accompanying bar on processing of any decertification petition.

In addition to serving as an example of a case where these extraordinary remedies are justified, the case serves as a reminder that not all wildcat strikes are unprotected.  Under this decision, strikes by employees may still be considered protected activity, even without express authorization from the union, and even if they appear to be based on employee demands separate from the union.

Employers will need to look beyond a simple determination of whether the employees are acting with union authorization or support, and instead look for employee efforts to bypass their union or deal directly with the employer.  Employers should therefore carefully review the situation before taking adverse actions against employees engaged in a wildcat strike.