Amazon’s Anti-Union Drive Shows Why US Labor Law Is Broken

2/24/2021 - Article by David Doorey from Jacobinmag.com

Amazon workers in Alabama are voting on whether to unionize, but the company is able to bombard them with anti-union propaganda. In Canada, by contrast, union votes are held quickly, making it harder for companies to stack the deck — a model that can work in the United States.

In February 2020, a Canadian labor tribunal ruled that couriers delivering food for delivery service Foodora in Toronto were, in fact, employees, not independent contractors. This decision entitled Foodora workers to unionize and engage in collective bargaining.

The Foodora campaign in Toronto stands in stark contrast to the story unfolding in Bessemer, Alabama, where some 5,800 Amazon employees began voting last week on whether to be represented by the Retail, Wholesale and Department Store Union (RWDSU).

In an attempt to fight off its workers’ attempt to organize, Amazon requested that the election be held in person, despite the threat of COVID-19. The bid proved unsuccessful and election ballots have been mailed to workers. However, the company still has weeks to argue its position while the voting takes place. In January, it secured the services of an anti-union consultant.

If Ontario’s labor laws were in effect in Alabama, the employees would have voted a week or so after the union filed its petition with the National Labor Review Board on November 20. There would still be ongoing litigation about various matters related to the vote, but the ballots themselves would have been cast months ago, frozen until they are ready to be counted.

Amazon would have no motivation to campaign against the RWDSU after the employees had already voted, so there would be relative peace in Bessemer right now. Instead, the National Labor Relations Act allows for a pitched battle, permitting Amazon to hold its employees captive in a months-long propaganda campaign to dissuade them from choosing collective bargaining.

The Canadian Model

In Ontario, votes are usually conducted within a week of the date a union petitions to represent workers. In the Foodora case, the vote was delayed an extra day to account for the time needed to organize an electronic ballot of nearly 1,200 couriers scattered across the greater Toronto area. Because of COVID-19 health measures, the Labor Board accepted Foodora’s argument that an electronic ballot was appropriate.

Electronic certification ballots are relatively new to Canada, but the pandemic has demonstrated that they work just fine. In-person voting will remain the norm once the pandemic is past, but the much slower mail-in certification vote option is now all but dead.

In the Canadian system, the ballots are cast quickly. If any legal disputes relating to the vote remain, the ballots are “sealed” (not counted) until those issues are litigated afterward. This simple rule eliminates any practical impediment to conducting votes within a week or so of the union’s petition.

In the Foodora case, the ballots were counted months after they were cast and after voter eligibility issues were resolved. In the end, approximately eight hundred workers voted, with almost 90 percent voting in favor of being represented by the Canadian Union of Postal Workers.

Employers Aren’t Short on Time

Critics have long identified the delay in holding union elections as a major problem with the US model of freedom of association. Employers argue that an extended campaign period is necessary to ensure that employees have the opportunity to receive both sides of the story. The business lobby describes proposals to hold votes less than a month from the date of a union’s petition as “ambush” elections.

Recently, the CEO of the National Association of Manufacturers (NAM) argued that shorter time frames deprive workers of the time they need for making “important and informed decisions like whether or not to join a union.” More revealingly perhaps, the NAM chief also said that short campaigns deny employers “adequate time to prepare.” Employers claim that they need months, not days or weeks, to explain to employees why they should reject collective bargaining.

In Canada, the notion that months would be required for this process seems preposterous. Canadian employers, including many US-based multinationals operating in Canada, have had no difficulty conveying their anti-union messages to employees in the space of one week. Employer-side labor law firms have boilerplate seven-day plans ready to go, outlining steps that employers should take on each day preceding the vote.

Anti-union messaging is not rocket science. The message from employers is always the same: they prefer to deal with workers individually rather than collectively through a union (“an outside third party”) and claim that employees will be better off without unionization. They remind their workers that you can still vote against unionization if you signed a union card, depict the union as a business that will try to collect union dues, and warn that a union cannot guarantee everything it might promise during the campaign.

In one form or another, that is the extent of the employers’ lawful message every time. True, an astounding number of US employers go further and make unlawful promises or threats, linking a vote to unionize with adverse job-related consequences. But no one argues — publicly at least — that votes should be delayed so that employers have more opportunity to engage in unlawful conduct.

Undue Influence

The Canadian model is by no means ideal for unions, of course. Conservative governments introduced the “quick vote” model that today is used in most Canadian jurisdictions in the 1980s and ’90s. They did so against strong resistance from the labor movement, since quick votes replaced the previously dominant model of “card check” union certification.

In a card check model, a union can be certified without the need for a vote if a majority of employees sign union membership cards. Studies have found that the move from card check to mandatory quick certification votes in several Canadian provinces led to a significant drop in successful unionization efforts.

Card check makes it harder for employers to wage lengthy anti-union campaigns, which is why unions in Canada and the United States prefer it to mandatory certification votes. For the same reason, right-wing politicians and the business lobby in Canada are generally quite happy with the quick vote model and in no particular hurry to extend the length of time needed.

In the 1990s, the United Steelworkers petitioned to represent workers at a Walmart store in Windsor, Ontario — just across the border from Detroit. Walmart executives conducted daily captive audience meetings, engaged in one-on-one conversations with employees, and flooded employees with “vote no” literature for six straight days preceding the certification vote.

No one dared suggest that the Walmart employees had not received their employer’s message when they cast their ballots on the seventh day. In fact, the Labor Board ruled that Walmart’s anti-union messaging was so overwhelming and oppressive during those six days that it constituted illegal “undue influence,” undermining the Board’s capacity to measure the true wishes of the employees through a ballot. Because of Walmart’s unlawful conduct, the Board certified the union.

In Alabama, the RWDSU filed its petition to represent Amazon employees in November, but the voting will be conducted between February 8 and March 29. At four months, the time between the filing of the petition and the close of the vote is a shockingly long period, during which the law permits Amazon to subject its employees to an onslaught of negative messaging that will dominate their lives for weeks on end.

The company has taken full advantage of this opportunity, ordering employees to attend captive audience meetings during their working hours, barraging employees with up to five texts per day, engaging in one-on-one discussions with employees, and even posting anti-union flyers in bathroom stalls.

With the exception of the captive audience meetings, which are prohibited once the ballots are mailed out, this can all continue until the end of the voting period in late March. US labor law grants Amazon months to bombard its employees with the identical message Walmart managed to convey effectively in just seven days in Canada.

Amazon’s behavior no longer has anything to do with conveying information. By now, every Amazon employee knows full well the company’s position. They have known for months. There is a line between conveying relevant information and smashing employees over the head with propaganda. Amazon is well past that line, with the full support and encouragement of a failed legal model that is in desperate need of reform.