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In Amazon union election, votes cast by some ineligible ex-employees could swing outcome

[March 24, 2021] By Jeffrey Dastin and Mike Spector

(Reuters) - Although Emily Stone's employment at an Amazon.com Inc warehouse ended on Feb. 1, she still received a ballot for her former company's union election in the weeks following her departure and a text asking her to vote no.

The union "will make a lot of promises, but have they delivered on those promises?" read another text alert she got from the Bessemer, Alabama warehouse's management, seen by Reuters. She recalled thinking, "I can't figure out how to get them to stop sending me messages."

Stone, 25, said she decided against returning the ballot because she no longer worked for Amazon. The company had declined to extend her paid leave after she contracted COVID-19 in November, which sent her to the hospital, she said.

She is not alone. Reuters spoke or texted with 19 people Amazon listed to receive a ballot for the election even though they now no longer work at the company. At least two of them already voted, they told Reuters.

Election terms, however, stipulate that workers who quit or are discharged for cause after a payroll period ending Jan. 9 are ineligible to vote, according to a decision by the U.S. National Labor Relations Board’s (NLRB) acting regional director in Atlanta. This group of Amazon workers - those who left after the January payroll period, but still ended up on the NLRB's voter list - could become a sticking point for both the company and the union.

The NLRB requires that Amazon distribute a notice of election informing employees that they would become ineligible under those circumstances. It is not clear whether all workers who received ballots were aware of the restriction, which was detailed in one sentence of the five-page document.

The NLRB region did not send out ballots until Feb. 8. The materials were sent to workers on a list Amazon provided based on the January payroll period. In the ensuing weeks, some of the workers contacted in the NLRB's mailing had departed the company. Ballots from those former employees, if submitted, can be contested by Amazon, the union or the labor board when votes are counted, according to the notice of election.

Reuters couldn't determine the total number of Amazon employees who received ballots in that ineligible category.

The ballots sent to former employees could stir a potential vote-count battle between the company and the Retail, Wholesale and Department Store Union (RWDSU), which is aiming to be the first ever to organize one of Amazon's facilities in the United States, a person familiar with union strategy said.

The RWDSU might dispute hundreds of names as ineligible to vote in a campaign open to more than 5,800 workers, the person said. Amazon declined to comment on whether it planned to dispute any names on the basis of eligibility rules.

If the election is close, these contested ballots could swing the outcome, helping encourage - or deter - future labor organizing at America's second-biggest private employer after Walmart Inc.

Stuart Appelbaum, the RWDSU's president, said he did not know when the results would be settled in Bessemer. He added: "We've heard from over 1,000 Amazon workers who want to know if their warehouse could be next" to attempt unionization.

In a statement, Amazon said, "Our goal is for as many of our employees as possible to vote." A regional labor board official referred Reuters to the U.S. NLRB, which declined to comment on former employees' voting eligibility or possible challenges to the election's result.

'FELT LIKE IT WAS UNFAIR'

Amazon has long discouraged attempts among its more than 800,000 U.S. employees to organize, namely by showing managers how to spot union activity, boosting pay and warning of union dues that would take away from that, according to a past training video, the company's union election website and public statements. Those tactics, plus allegations by some staff of a grueling or unsafe workplace, have turned unionizing Amazon into a pivotal goal for the U.S. labor movement.

Amazon said it is following all NLRB rules and that it wants staff to understand each side of the contest.

It said, "We don't believe the RWDSU represents the majority of our employees' views. Our employees choose to work at Amazon because we offer some of the best jobs available everywhere we hire," citing health benefits, a 50% 401(k) match and at least $15.30 per hour in pay in Bessemer.

Union membership has fallen to 11% of the eligible workforce in 2020 from 20% in 1983, the U.S. Bureau of Labor Statistics has said.

Ballots are reviewed starting March 30. Before the tally starts, Amazon or the union can dispute any voter’s eligibility or a ballot’s integrity. The unchallenged ballots are then counted. If there is no clear winner, the NLRB will rule on the disputed ballots at a later time.

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People protest in support of the unionizing efforts of the Alabama Amazon workers, in Los Angeles, California, U.S., March 22, 2021. REUTERS/Lucy Nicholson

One name that could be contested is Denean Plott. The 56-year-old associate said she left Amazon this month after having to retrieve goods "every seven seconds" from bins to fulfill customer orders. "It was a bit too exhausting for my body," she said.

"During February, I went ahead and voted early," she said in an interview. She was on leave after testing positive for COVID-19 at the time. "I voted pro-union."

Five others no longer at Amazon, including Ethan Dagnan, told Reuters they have not returned their ballots.

"I had gotten it the week before I left," said Dagnan, 18, noting he stopped working at Amazon in February. "I just chose not to vote because I felt like it was unfair."

"VOTE NOW AND VOTE 'NO'"

Amazon has relied on its outside law firm Morgan, Lewis & Bockius LLP for countering unionization, said John Logan, director of labor and employment studies at San Francisco State University.

In a May 2020 slide presentation on the firm’s website that accompanied a public webinar, Morgan Lewis lawyers told employers: "Unions are capitalizing on COVID-19 virus fears." The lawyers also suggested companies prepare an argument ahead of any NLRB review for conducting union elections in person or delaying them.

They cautioned employers that mail-in voting can increase the potential for misconduct.

Late last year, Amazon also hired a Morgan Lewis labor attorney in-house and has been seeking additional lawyers who could help it with "union organizing campaigns," according to LinkedIn data and job postings seen by Reuters. The attorney, Meredith Riccio, did not immediately respond to a request for comment.

Morgan Lewis declined to comment about its work for Amazon and its public advice for employers facing potential union campaigns. In a January public filing seeking review of the NLRB regional director's decision to hold the Bessemer election by mail, the firm's lawyers argued on Amazon's behalf that an in-person election could be safely conducted with pandemic protocols for employees, NLRB agents and union observers. Amazon's workers are already present at the facility each day, they said in the filing. The NLRB denied Amazon's request.

With regard to Morgan Lewis, Amazon said hiring subject-matter experts across fields is standard practice. It also pointed to an NLRB decision noting that on-site elections have higher staff participation rates than mail-in ones.

Companies often want more employees voting because that can dilute unions' support and make it more difficult for them to achieve the majority needed to win an election, said Logan, the San Francisco State University professor.

The online retailer has encouraged workers to vote in text messages some received after they departed the company. Asked why, it said it was contacting workers who were on leave to answer any questions they had about the election.

"Don't stay on the sidelines," read a Feb. 14 text to Alifah Furqan. "Vote now and vote 'NO.'"

Furqan said she had left eight days prior. Reuters reviewed five campaign texts Amazon sent Furqan after she resigned, including one telling her to vote "right away" and another directing her to a mailbox the postal service installed at the warehouse.

Furqan refused.

"I knew if I didn’t work for the company that my vote couldn’t count," she said. Furqan said she was unfamiliar with any official rule that might disqualify her ballot, but felt voting after leaving the company would be unethical. "I didn’t want to put a wrench in it because I’m for the union."

Warehouse leadership, meanwhile, warned staff that collective bargaining came with risks for workers, according to a Jan. 13 text alert viewed by Reuters. Negotiations could result in workers losing benefits, the text said - something the union has disputed.

"Everything is on the table," the text declared.

(Reporting By Jeffrey Dastin in San Francisco and Mike Spector in New York; Additional reporting by Tom Polansek; editing by Vanessa O'Connell, Grant McCool and Edward Tobin)

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