On April 2021, the employees of an Amazon distribution center located in Bessemer, Alabama overwhelmingly voted against representation, much to the dismay of the Retail, Wholesale and Department Store Union. More than half of the nearly 6,000-employee workforce cast votes. Of those votes, more than two-thirds were tallied against representation. Following the election, the Union filed objections, and a NLRB hearing officer has now delivered her report on those objections. The hearing officer found that Amazon acted inappropriately and recommended a new election. Her recommendation is now being reviewed by the NLRB’s Regional Director before it becomes final.
The primary issue in this case was the use of mail-in ballots. Due to the ongoing pandemic, the election at Amazon’s Bessemer location was held by mail-in ballots over a 7-week period in February and March 2021. Amazon, with the claimed intention of “providing associates a convenient location to mail in their ballots,” lobbied for the U.S. Postal Service to install a mailbox in the employee parking lot of the distribution center. The mailbox was covered by a tent, but security cameras located in the parking lot were in view and could potentially see employees enter and exit the tent. There was a “speak for yourself, mail your ballot here” sign placed on one side of the tent. The mailbox was gray, not blue, which seemed to discount its presence as an official USPS mailbox. There was further uncorroborated testimony that at least one employee saw Amazon security accessing the mailbox; this testimony was directly contradicted by a USPS employee.
The hearing officer found that the presence of the mailbox was coercive and a usurpation of the Board’s role during an election. The hearing officer noted that the mailbox was unnecessary. “[W]ithin 20 miles of [distribution center] there are 49 United States Post Office branches with secure mail receptacles, as well as another 183 ‘Other Mailing Locations.’” The hearing officer further noted that the installation of the mailbox at the Amazon location was at the behest of Amazon, not USPS, and it used its “considerable influence to compel USPS to authorize and install the mailbox.” The hearing examiner further noted that Amazon, not USPS, chose the exact location of the mailbox. Finally, the sign located on the side of the tent included the phrase “speak for yourself,” a campaign slogan routinely used by Amazon, but also the statement “mail your ballot here” which could imply the tent was an official voting location. The hearing examiner found “the aggregate effect of the mailbox [] affected the results of the election.”
The Union filed additional objections regarding Amazon’s conduct during the election and claimed its campaign tactics were coercive and contained threats. The hearing examiner found these allegations were incorrect, and Amazon lawfully communicated with employees and the majority of the information shared by Amazon used “language from the Board’s own cases.” The hearing examiner reviewed a number of other objections raised by the Union and found in multiple instances the Union failed to provide even a “scintilla of evidence” to support these objections.
Significantly, in the hearing examiner’s 61-page report, she agrees in a number of places that the Union’s objections were unsupported by facts and evidence. However, she also heavily discounted Amazon’s testimony and evidence. For instance, when she found that there was an “impression” of surveilling the employees’ Section 7 activities due to the presence of security cameras in the parking lot despite testimony that the cameras were not viewed during the election.
The hearing officer’s message to employers seems to be this: do not do anything that could be seen as a convenience to your employees during an election and do not allow your employees access to mailboxes on company property. Or perhaps I missed the message.