The union drive in Amazon’s Bessemer, Alabama, fulfillment center that ended with a majority of workers voting against unionizing may well get a second chance. A National Labor Relations Board (NLRB) official is now calling for a reelection, citing Amazon’s misconduct in the first one. But it’s still not a sure thing that this reelection will happen, and if it does, it’s even less certain that the result will go the union’s way.

Kerstin Meyers, the NLRB official who oversaw the hearing of the Retail, Wholesale and Department Store Union (RWDSU)’s objections to the election, recommended on Monday that the results, which were overwhelmingly in Amazon’s favor, be set aside and a new election be held. (RWDSU was the union that Amazon workers would have joined if the vote went in favor of unionizing.) While she dismissed some of the union’s objections, Meyers found that others — almost all of which centered around Amazon’s installation of a mailbox on warehouse grounds — were sufficient to warrant another vote.

placed in the fulfillment center’s parking lot. Amazon encouraged employees to use this mailbox to send in their votes. Amazon had aggressively pushed the United States Postal Service to approve and install the mailbox in time for the union vote. Some workers were not pleased about the mailbox at the time, and the union made it a major focus of its objections to the vote.

Meyers found that employees had reason to believe that Amazon was surveilling them and had control over the mailbox, which could have influenced how and whether they voted.

“I find it is the aggregate effect of the mailbox that affected the results of the election,” Meyers wrote. “It is the totality of the circumstances created by the installation of the mailbox absent any authorization from the [NLRB] … the Employer’s conduct herein so undermined the laboratory conditions necessary to ensure a free and fair election [that] a re-run election is necessary.”

The mailbox.
The mailbox.
Retail, Wholesale and Department Store Union

The only non-mailbox-related objection Meyers agreed with was regarding Amazon’s distribution of anti-union materials in the presence of managers during mandatory meetings, when employees would have felt compelled to accept them.

While a new vote is only a recommendation for now, RWDSU is optimistic that it will lead to a new election and another chance to unionize.

“We support the hearing officer’s recommendation that the NLRB set aside the election results and direct a new election,” RWDSU president Stuart Appelbaum said in a statement. “Amazon’s behavior throughout the election process was despicable. Amazon cheated, they got caught, and they are being held accountable.”

So, what happens next? The recommendation goes to the NLRB’s regional director, who will consider any exceptions filed by either party and issue a ruling, probably within the next few weeks. Typically, the regional director’s ruling follows the officer’s recommendation. Assuming that’s the case here, Amazon will then get a chance to ask the NLRB board in Washington, DC, to review that ruling and ask for a stay on the second election, which the company is expected to do.

“Our employees … should be heard above all else, and we plan to appeal to ensure that happens,” an Amazon spokesperson said in a statement.

(Similarly, in the unlikely event that the director decides against a new election, RWDSU can appeal to the NLRB board in DC for a review.)

Either review will likely be heard by a majority-Democrat board. Currently, the board is majority Republican with three Trump appointees and two Democrats, but one of those Republican board member’s term expires on August 27, at which point President Biden will be able to replace him with a Democrat. That bodes well for the union but, again, isn’t a guarantee. Even the Republican-majority board, which was seen as pro-management and anti-union, ruled against Amazon in the lead-up to the first election, denying its request for an in-person vote in the middle of the pandemic due to the obvious safety reasons.

Simply put, the NLRB officer’s recommendation means there’s a good chance Bessemer will have a second election, and we’ll know for sure if that’s the case within the next few months. But then the RWDSU has to win that election, which is far less likely. Amazon won the first election, 1,798 votes to 738, with an additional 505 ballots that were never counted. With nearly 6,000 workers eligible to vote, that means about half of them didn’t cast a ballot at all. Perhaps they were scared to vote due to Amazon’s tactics, or perhaps they just weren’t interested one way or the other.

So the union still has to win a lot of employees over. Those employees may not be the same ones who voted in the first election, given the amount of time that has elapsed and the center’s high turnover rate. They may see the union drive as a losing battle, given the lopsided results of the first election and the fact that the few other unionization attempts at Amazon in the United States have failed. Even the ones who support the union may be tired of fighting.

Bessemer is still an uphill battle for RWDSU. But that hill isn’t as steep as it was two days ago. And even if RWDSU fails a second time, it doesn’t appear that the effort to unionize Amazon is over. Last June, the Teamsters voted to create an Amazon division dedicated to unionizing Amazon workers across the country. Maybe Amazon is in for an uphill battle, too.

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