What Amazon Will Do Next. What Unions Must Do Next.

The NLRB can—as originally intended—quickly facilitate worker organization. But workers need to act fast before the Supreme Court cancels their efforts.

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In August of 2019, lest we forget, the Business Roundtable released a new statement of corporate purpose. Throwing aside its decades-old declaration that the sole mission of American big business was to reward shareholders, it amended that pronouncement by stating that corporations’ new purpose was to serve the interest of all stakeholders, including consumers, suppliers, the public, and even employees. “This starts with compensating them fairly and providing important benefits,” the statement declared. “We foster diversity and inclusion, dignity and respect.”

Hundreds of America’s leading CEOs affixed their names, including, very prominently, Amazon’s then-CEO Jeff Bezos.

Then as now, there was reason to think the document was just a tad disingenuous. At Amazon, after all, the annual rate of job turnover for their huge warehouse workforce is a mind-boggling 150 percent. Given the careful study and precision with which Amazon crafts its business practices, this turnover rate is not a bug but a deliberate, considered feature. By making the work in its warehouses so debilitating to its employees’ bodies, so demoralizing to their minds, and so exquisitely monitored by digital technology to track their employees’ every move, Amazon plainly intends to have its workers sprint through their rounds until they drop, and then hire the next crew of sprinters.

A highly indirect way, is it not, to foster the company’s “dignity and respect” for its employees?

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Besides, when the job tenure of the typical Amazon employee is well under a year, the prospects that a warehouse workforce will unionize—horror of horrors—is rendered even more remote. Discontented Amazonians don’t try to mitigate management’s abuses; they just quit.

At least, until last week.

Amazon’s response to the victorious self-organization of its employees at its giant JFK8 Staten Island warehouse exhibits that same entitled, worker-hating chutzpah. The company has already complained that the results of last week’s election should be tossed out due to the “inappropriate and undue influence” of the National Labor Relations Board, which oversees union elections like the one in Staten Island.

Two weeks earlier, the NLRB sought an emergency injunction that would have reinstated warehouse employee Gerald Bryson, who the Board says was fired for union-related activity, and would have compelled the company to post notices of the infraction and inform employees of their rights under the National Labor Relations Act. Amazon is likely to claim (as the National Retail Federation does in this letter) that even the attempt at reinstating Mr. Bryson destroyed the “laboratory conditions” of the election, essentially biasing the outcome such that it would need to be thrown out. Of course, since the NLRA was passed in 1935, the minimum remedy for illegally firing a worker due to union activity has been to require the employer to post such a notice, but what’s 87 years of precedent to a company like Amazon?

The NLRB’s proposed injunction, authorized under section 10(j) of the NLRA, reflects the fact that President Biden’s appointees both to the Board and to the post of the agency’s general counsel (Jennifer Abruzzo, whom I profiled last week) intend to take the text of the act very seriously. They are, in a sense, originalists, determined to restore labor law to the pro-worker intent of the act’s authors and the language they enacted.

At the end of this process loom the courts—in particular, the Supreme Court, on which six labor-hating justices currently sit, happy to craft anti-worker rulings.

That means that, while Amazon is likely to appeal the Amazon Labor Union’s victory to the NLRB’s administrative judges and then the five-member Board itself, that process, which normally could take years in which the union is held in limbo and first contract negotiations in abeyance, could be accelerated into just a couple of months. As well, Abruzzo has instructed the agency’s far-flung attorneys to find employers liable for any wage hikes that didn’t happen due to employers’ resistance to begin bargaining, thereby penalizing employers for refusing to bargain.

At the end of this process, however, loom the courts—in particular, the Supreme Court, on which six labor-hating justices currently sit, happy to craft anti-worker rulings, whether tangentially justified by law or not. The saving grace for unions it that it customarily takes years for the kind of cases Amazon appears bent on pursuing to reach Alito & Company (aka “Union Busters ‘R’ Us”), though a right-wing circuit court of appeals could conceivably buy the “laboratory conditions” argument at an earlier stage and enjoin the election.

The most likely way, and quite possibly the only way, that the surge of worker organizing can survive these executioners is to establish so many facts on the ground, so many organized worksites and companies, that by the time such cases reach the Supremes, tossing the unions would lead to a massive strike or kindred disruptions. We are seeing that in the case of Starbucks, where over 100 stores have filed for unionization. (The NLRB has an opportunity to help that along by taking action on a wave of seemingly illegal firings of union organizers at many of these Starbucks locations.)

But the best way to build this wave of organizing is for the nation’s established unions to immediately provide massive funding and resources to those restive millennials and Gen Zers now beginning to organize themselves in workplaces across the land. They must fund and help those efforts, even if there’s no prospect that the newly organized workers will actually join their particular unions.

We’re seeing the seeds of this already. In a Twitter Spaces event on Tuesday, Amazon Labor Union leader Chris Smalls said that he would be meeting with new Teamsters President Sean O’Brien this week. At their convention last summer, the Teamsters, which have more warehouses under contract (none of them Amazon warehouses) than any other union, vowed to devote massive resources to organizing Amazon’s warehouse workers.

For the past decade, the Service Employees International Union has invested heavily in a campaign to raise the minimum wage to $15 and organize fast-food workers. Given the dysfunctions of labor law (which the current NLRB is working to correct), SEIU has yet to unionize any of those fast-food workers, but they’ve managed to win the $15 minimum through many local ordinances and several state laws (including in California and New York). Despite the failure (so far) to win any dues-paying fast-food workers, the union’s investment in this campaign has continued apace.

That kind of spirit is what the entire labor movement needs to emulate now. Absent a surge in unionization in the next couple of years so massive that the courts can’t simply nullify it, the established unions themselves, now down to claiming just 6.1 percent of private-sector workers, will soon face irrelevance and nullification themselves.

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