NLRB Hearing Officer Recommends Second Union Election at Amazon – But Will It Happen?

By Chad M. Horton - Shawe Rosenthal LLP

August 18, 2021

A National Labor Relations Board (NLRB) hearing officer recently recommended that the union election at an Alabama Amazon warehouse be run a second time. The hearing officer, an employee of a NLRB Regional Office, sided with the Retail, Wholesale and Department Store Union (RWDSU) that Amazon’s actions interfered with a fair election. Specifically, the hearing officer found that Amazon’s installation of an unmarked mailbox as a ballot drop-site that was within the view of company surveillance cameras, hiring of private police, threatening of employees, and changing county traffic lights (come on, how many companies have the pull to get county traffic lights changed?) to impede RWDSU access to voters amounted to objectionable conduct.

Amazon will undoubtedly appeal the hearing officer’s recommendation to the Regional Director in the NLRB’s Atlanta, GA office. But the decision is very likely to be upheld by the Regional Director. (And if it isn’t, talk about tough few days at the office for the hearing officer if her boss, the Regional Director, effectively tells the country that she got it wrong in this closely watched case. Awkward.) With Democrats prepared to assume control of the Board on August 27, many observers believe that the ordering of a second election is a near certainty. If that does happen, there will be great rejoicing in the labor community.

But will a second election follow soon after? I have my doubts for at least two reasons.

First, Amazon’s victory was decisive. In the final tally, 1,798 employees voted against unionization, while only 738 voted to unionize. Even if the 505 challenged ballots were all in favor of unionization (they weren’t), the RWDSU still took a thumping.

Second, Amazon warehouses have an astronomical turnover rate. Assuming the Regional Director and Board act quickly, a new election is still unlikely before spring 2022. By that time, a substantial portion of the workforce will be comprised of new voters. While new employees present new opportunities for the RWDSU, these employees have likely been exposed to Amazon’s steady drumbeat of reasons why they should not vote for a union. In contrast, RWDSU has likely not had the same opportunities to organize these new employees following the first election.

Might the RWDSU roll the dice on a second election and hope that Amazon engages in further objectionable conduct to such an extent that the Union asks a (by then) union-friendly NLRB for a bargaining order – i.e., an order that a free and fair election is impossible due to Amazon’s conduct and therefore the Union is declared the employees’ bargaining representative despite never winning an election? Sure, it may.

More likely, though, the ordering of a second election will give the RWDSU a new voter list, which includes employee addresses and contact information. The Union, after receiving the list, could then withdraw the petition and begin its organizing efforts in earnest with the new employees.

But given the margin of victory in the first election coupled with the high employee turnover, the RWDSU likely must restart its organizing efforts. The ordering of a second election will assist that process, even if the RWDSU passes on the immediate opportunity for such an election.