Labor expert explains what the unusual union at Amazon Fresh can and cannot do

Workers at the Amazon Fresh store in Seattle’s Central District, announced recently that they've formed a union, citing a culture of bullying by managers and working to the point of exhaustion.

KUOW reporter Joshua McNichols spoke to Wilma Liebman, former Chairperson of the National Labor Relations Board, about this unusual form of union and how it fits in with national trends.

How do you see the recent rise in union activity?

I would say — about the last decade almost — there has been a very noticeable rise in worker activism, worker discontent, worker collective activity — some of which is unionization, some of what some of which is non-union worker activism. But it is it is remarkable.

There is no doubt that there's been this crescendo of interest in activism over about the last 10 years, beginning to some extent with Occupy Wall Street, but most noticeably in terms of workers with the Fight for $15 ... the fast food worker movement that started with small protests in New York City and rapidly expanded across the country and across the globe. That has ended up not so much with unionization, but with minimum wage hikes around the country.

Certainly in the last year or so with the pandemic, there has been a further crescendo of activism. Some of it union related, obviously, the most recent headline grabbing stories involve, involve Starbucks, and Amazon. The latest statistics from the Labor Department show that union density has not increased, in fact, it may have gone down a little bit. So there's a bit of a disconnect in terms of all the activism, which is undeniable, and the actual growth of union members. Some of that is the loss of unionized jobs during the pandemic. So it's a balance, but it's undeniable that there's been a rise in activism.

In terms of the rise and what's actually real versus not, I learned that there was a 30% increase in filings for new union elections in the last quarter.

It is certainly possible that there has been an increase in filings with the National Labor Relations Board — I assume you mean petitions for union elections. But not all petitions end up in an actual election being conducted. The win rate is pretty high because unions tend to go for the election only when they think they can win. So sometimes they'll pull back if they encounter difficulties, either legal difficulties, arguments raised by the company, or loss of interest.

Can you help me understand currently what Amazon's treatment of unions has been? We've heard about high profile cases recently in Alabama and New York. And recently there was a settlement with the NLRB.

Their recent settlement basically was an acknowledgment that they were going to lose the case. They were restricting the rights, as I recall, of off-duty employees to talk with each other about working conditions and unionization. That's a pretty fundamental right under the labor laws that's been established for decades. But I don't think that the fact that they entered into that settlement in any way really changes what appears to be the fact that Amazon is dead set on remaining non-union and all of its operations. And they will engage in hard campaigning as they did in Bessemer to try to resist a unionization effort.

Note: KUOW reached out to the store manager at Amazon Fresh in Seattle's Central Distict, where a group of employees say they've formed a union. We were referred to Amazon's corporate public relations team, which did not respond.

What conclusions should we draw from that?

Under the law, there's a certain amount of so-called free speech that an employer is entitled to express — they can express their opinions, including very anti-union opinions. What they can't do is threaten or otherwise restrain or coerce employees. They can't lawfully fire people for engaging in union activities. They can't threaten them that they're going to lose their jobs. They can’t interrogate them coercively, they can’t engage in surveillance of union activities.

The fine line between what's lawful and what’s unlawful is often litigated. The National Labor Relations Board has litigated tens of thousands of cases about whether certain comments during union organizing campaigns are lawful or unlawful threats. In addition, the labor law, which was first enacted in 1935, one of the very earliest workplace laws, is famous for its very weak remedies.

The remedies are really not sufficient to deter an employer that is really dead set on taking whatever steps possible to defeat a union organizing campaign. And in some cases, that means discharging people engaged in union activity. The notion is, you get rid of the union leaders and you might nip the organizing campaign in the bud.

Employers are allowed to meet with workers in what are called captive audience meetings, in which the employer can go on and on as long as it wants about why unions are a bad idea. And they don't even have to give you a right to ask questions, let alone have equal time.

RELATED: Workers at Seattle Amazon Fresh store say they've formed a union

Workers at the Amazon Fresh store who have declared they’ve formed a union are sort of going it alone, which means they're not collecting dues, they're not associated with the UFCW, for example. They just want the right to be able to come together and work out problems together and confront management together.

Is this a common, or a very uncommon approach to go for this sort of lower, simpler tier of organizing?

It's always been out there, but I think we've seen a little bit more of it in recent years ... Employees are free to do what I hear you saying this group is doing, trying to come together trying to deal with the employer about problems. The employer, at least as currently interpreted, has no legal obligation to deal with its employees, short of majority status being proven. And in fact, even if this group would go to the employer and say, "We have majority status, please bargain with us," the employer could always say, "I'm not going to do it voluntarily. Go to the NLRB and they'll conduct an election."

Whether it's a formal labor union, like the UFCW or the Teamsters, or whatever, doesn't matter. They could be organizing an independent union and still seek collective bargaining rights. Maybe that's not what they're doing yet. Maybe they're doing it at a more gradual level, just trying to get a toehold with the employer, testing whether the employer will actually sit and talk with them.

What about firings over unrelated, some would say petty, things? People have told me that even if this activity is protected, ‘they might fire me over something else, such as being on my cell phone at the wrong time, even though we need our cell phones to check in and check out at work.’

That's a risk. And I would say that any employer, Amazon or otherwise, that is looking to find ways to kill an organizing campaign or diminish it at least, may be looking for some little lapse in behavior or conduct, which they will use as the grounds for for firing someone. This is the run-of-the-mill case that comes before the NLRB that involves dual motivation.

For example, let's say the person is late once a week and they've been tolerating that for two years. But suddenly the union campaign starts and they fire the person for lateness. One would say that was a pretext. So these are something that union activists probably are aware of the risks that they face.

Would throwing someone out or or implying that they should leave the premises for engaging in protected activities be against the law?

You can engage in solicitation of others, and you can even distribute literature as long as it's off the so-called plant floor and on your own time. So break time, lunchtime, those are all open for engaging in union activity, discussions about working conditions. In fact, the Supreme Court has said the workplace is the obvious place for workers to come together and discuss working conditions. So yeah, if you are fired for having a discussion about, ‘Come to a union meeting,’ and that's in your break time, that's unlawful.

Do you have any big, unanswered questions that you're curious about as the as news progresses?

This is really a moment when it appears that workers have more power. Certainly wages have gone up during the great resignation, [as well as] the difficulty of some employers with finding workers. Some people have said there's not a labor shortage, there's just a good job shortage. But to me, the overarching question is: Is this really a transformational moment?

The pandemic has exposed and exacerbated inadequacies in our laws, inadequacies in our social safety net, and general inadequacies about our social compact. These inadequacies and weaknesses have existed for decades now. And it's really taken the extreme conditions of the pandemic to bring these very vividly into the public eye. But is it going to make a big difference in the end? Is it going to be transformational in terms of what the law is, in terms of our ability to tackle the wage stagnation of so many decades, or our ability to tackle glaring wealth inequality? Is this a blip? So that's the big question for me — how profound is this historic moment going to be in terms of real, lasting change?