Stanford’s Bill Gould on Amazon Workers’ Vote to Unionize and Biden’s Support of Unions

Stanford’s Bill Gould on Amazon Workers’ Vote on Unionize and Biden's Support of Unions

As workers at Amazon’s Bessemer, Alabama warehouse gear up for a vote to unionize, support for the effort is coming from the Oval Office. On March 1, President Biden issued a statement in support of unions, saying that they “lift up workers.” He also said his administration will support union organizing and the right to collectively bargain. Here, labor law expert Professor William B. Gould IV, former chairman of the National Labor Relations Board, discusses unions in the U.S. and President Biden’s strong statement of support.

President Biden referenced the National Labor Act, saying that it does not just allow unions but “encourages” them. Can you talk about that?

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Stanford Law Professor William B. Gould, IV

Since 1935, despite amendments, the Preamble to the Act states that the public policy of the United States is to encourage the practice and procedure of collective bargaining and to promote freedom of association of workers, an important vehicle for collective bargaining. Though the Taft Harley amendments gave workers the right to refrain from as well as engage in union activity, the Preamble has never been altered one iota.

Does President Biden’s support of unions pose any legal issue relating to the outcome of the election for a union at Amazon in Alabama? 

If the union should win the election, Amazon may try to have the election set aside on the grounds that (1) his remarks were coercive for workers who might oppose the union because of the authority and prestige of the White House; (2) were inconsistent with the “laboratory conditions,” which are a prerequisite to the exercise of employee free choice at the ballot box and might be regarded as an endorsement of the union by the independent National Labor Relations Board (NLRB).

The NLRB could set aside the election if, for instance, the union should campaign using inflammatory hate-filled rhetoric—which the union hasn’t. My NLRB held that a letter by a Democratic Congresswoman sent on congressional stationery to voters in an election “implicitly encouraging” workers to vote for the union was permissible—the letter didn’t claim authority by the Congresswoman over the election. Similarly, a very conservative panel (including then Judge Kavanaugh) on the Court of Appeals for the District of Columbia held that there is nothing objectionable in the endorsement of a union campaign by state senators and assemblymen and that this couldn’t be equated with endorsement by the NLRB.

This is to be contrasted by, for instance, the statement of Senator Corker of Tennessee to workers there that they might lose work and their jobs if they voted for the UAW at Volkswagen. Those were threats, which labor law condemns. But President Biden’s speech is consistent with the standards of the precedent. While he endorsed trade unionism, he didn’t tell the workers how to vote—he simply urged them to decide for themselves without employer involvement.

Can an employer decide if a union will be established?

An employer can’t decide when a union can be established. The law guarantees the right of workers to have an election when 30 percent are interested in unionizing. An employer may voluntarily recognize a union as the exclusive bargaining representative where it possesses a majority and it may bargain with a union with only a minority of the workers selecting it on a member only basis.

Can a company campaign against a union—is it legal?

An employer may campaign against the union so long as it doesn’t use threats (as mentioned above regarding Senator Corker) or promise benefits to those not joining the union. Significantly, President Biden has gone beyond the law in condemning anti-union propaganda. The law doesn’t do so but it was appropriate for the President to urge workers to ignore such and decide for themselves.

Does the law guarantee the right of American workers to join a union and to set one up?

The law guarantees the right to join a union, and to create one. But the remedies for violation are weak.

Has there been a big decline in union membership over say the last 50 years?

Since 1955, for numerous reasons, union membership has declined dramatically from about 35 to 10 percent, with only 6 percent in the private workforce. The loss of union membership translates into much less job security, most collective bargaining agreements stating that a worker can only be dismissed for just cause. Most other workers are at will with few rights.

How much does it matter that the president is speaking about this and showing support for unions?

No other president has spoken like this. Because the NLRA was passed when FDR was president, the unions passed out flyers which said “FDR wants you to join the union” But FDR never said that. So this is significant.

William B. Gould IV, the Charles A. Beardsley Professor of Law, Emeritus, at Stanford Law School, is a prolific scholar of labor and discrimination law who has been an influential voice in worker–management relations for more than fifty years. Gould served as chairman of the National Labor Relations Board (NLRB, 1994–98) and subsequently served as chairman of the California Agricultural Labor Relations Board (2014-2017). He has been a member of the National Academy of Arbitrators since 1970. Early in his career, he served as a consultant to the EEOC and lead counsel on key employment discrimination cases. Gould was recently appointed by San Francisco Mayor London N. Breed to oversee an independent and comprehensive review of the city’s workplace policies and practices with a focus on claims of bias, harassment, discrimination, and retaliation.

Gould’s most recent scholarship includes A Primer on American Labor Law (6th edition. 2019), and For Labor to Build Upon: Wars, Depression and Pandemic, New York: Cambridge University Press (forthcoming 2021).