Amazon’s unilateral mailbox installation nets workers a second election at Bessemer facility

By Pamela Wolf, J.D.

Employees at the Bessemer, Alabama, Amazon distribution center will get a second chance at electing union representation due to National Labor Relations Act violations that occurred during the first election. The results of that election, conducted by mail ballot, the National Labor Relations Board reported on April 9, 2021, as a win for Amazon and a loss for the Retail, Wholesale and Department Store Union (RWDSU) by a 738 to 1,798 vote.

The union quickly sought a hearing to determine whether the results of the election should be set aside because Amazon’s conduct created an atmosphere of confusion, coercion, and/or fear of reprisals and thus interfered with the employees’ freedom of choice (see RWDSU files objections to Amazon’s election conduct, wants results set aside, April 19, 2021).

After the hearing was held, the Regional Director of the NLRB’s Region 10 on November 29 adopted the recommendations of the hearing officer, sustained certain objections, set aside the election, and ordered that a second election be held.

Postal box installation. The great bulk of the ruling addressed six objections related to Amazon’s orchestration of the installation of a U.S. Postal Service mailbox at the Bessemer distribution center. Shortly after the pre-election hearing ended, and while awaiting the Region’s decision and election instructions, Amazon independently initiated the process of acquiring an official Postal Service mailbox on its premises to aid in collecting employee-voter mail ballots. Amazon told the Postal Service that it needed the mailbox installed due to the facility hosting a mail ballot election and the company’s desire to encourage high voter turnout.

After discussions between Amazon and the Postal Service in January and February, the Postal Service installed a gray “cluster box unit” instead of its more typical blue mailboxes on February 4. The mailbox was installed on the walkway at the main entrance of the facility, one of three locations suggested by Amazon, and in plain sight of the company’s security cameras. The mailbox did not bear Postal Service insignia or other any signage associating it with the Postal Service. Amazon erected a tent around the mailbox and attached a large banner that read, “SPEAK FOR YOURSELF! MAIL YOUR BALLOT HERE.” The “speak for yourself” message was part of Amazon’s campaign slogan encouraging employees to vote against the RWDSU. Graphics below the banner’s written message depicted several ethnically diverse hands grasping a yellow ballot envelope. Amazon sent messages to employees informing them that the Postal Service had installed a secure mailbox outside the main entrance, “making mailing your ballot easy, safe, and convenient.”

Issues raised. The Regional Director agreed with the hearing officer that Amazon’s installation, selected location, and encouraged use of the mailbox raised several election-related issues including

• Solicitation;
• The collection and security of the mail ballots;
• Surveillance or the impression of surveillance; and
• The false impression that the Amazon—not the Board—controlled the election.

The hearing officer concluded that the aggregate effect of the newly installed mailbox interfered with the laboratory conditions necessary to conduct a fair election and that the totality of circumstances cast doubt on the Board’s authority and control of its own election procedures. The hearing officer thus recommended that a second election be ordered.

Impact on free choice and interference with Board authority. In reaching a determination that the circumstances surrounding the mailbox installation warranted the direction of a second election, the Region Director noted that the Postal Service installed the mailbox on February 4, four days before mail balloting commenced on February 8. Amazon corralled the mailbox within a tent, affixed its campaign slogan on the tent’s side, and encouraged employees to “mail [their] ballot here.” Because this set up remained in place for the entire polling period at the main and only employee entrance to the Bessemer facility, “there is a very strong likelihood that every eligible voter saw it.”

Even if employees did not see the mailbox firsthand, Amazon notified them of the new mailbox and encouraged them to use the mailbox as an “easy, safe, and convenient” way to mail their ballot. In effect, Amazon intended its conduct to impact the entire unit and acted accordingly. “To find that, despite the pervasive nature of the conduct affecting the entire unit, the lopsided vote militates against a second election is to reward [Amazon’s] achievement of the goal of its objectionable conduct,” the Regional Director wrote. Thus, given the aggregate effect of the mailbox on employee free choice and Amazon’s interference with the NLRB’s authority in conducting a free and fair election, the Regional Director agreed with the hearing officer’s recommendation that a second election be directed.

Amazon’s flagrant disregard for the Board’s typical mail-ballot procedure compromised the authority of the Board and made a free and fair election impossible, according to the Regional Director. In the pre-election decision and direction of election, the Regional Director specifically disapproved of Amazon’s suggestions for making voting “easier” because the employer is neither responsible for conducting elections nor is it tasked or authorized to aid the process. Such responsibility and authority rests solely with the Board.

But Amazon ignored the spirit of that directive by unilaterally requisitioning the installation of a postal mailbox. Amazon asserted that it installed the mailbox to provide employees with a convenient voting location; to make voting easier for employees; and to encourage as high a turnout as possible, clearly perceived the mailbox as beneficial to employees. This pre-election grant of benefits created the impression that Amazon conducted the election process rather than the Board. By installing a postal mailbox at the main employee entrance, Amazon essentially “highjacked the process and gave a strong impression that it controlled the process,” the Regional Director said. This dangerous and improper message to employees destroys trust in the Board’s processes and in the credibility of the election results.

Election set aside. The Regional Director thus agreed with the hearing officer that by causing the Postal Service to install a cluster mailbox unit, communicating and encouraging employees to cast their ballots using the mailbox, wrapping the mailbox with its slogan, and placing the mailbox at a location where employees could reasonably believe they were being surveilled, Amazon engaged in objectionable conduct that warrants setting aside the election.