(Editor’s note: the article has been corrected from an earlier version regarding Teamsters success at the DSP level).
The Teamsters are claiming victory after organizing workers at a second Amazon warehouse, as well as a string of the e-commerce retailer’s direct service providers (DSPs).
But given the complicated nature of labor law today and the fact that the drivers of those vans now sweeping through neighborhoods don’t actually work for Amazon – at least not yet – it’s complicated.
The only successful Amazon-specific location where a union was voted in occurred on Staten Island, one of the five boroughs of New York City, in 2022. Earlier this year, that union, called the Amazon Labor Union, tied up with the Teamsters.
The Teamsters are now claiming victory at a second Amazon location, an air facility in San Bernardino, California.
However, the workers in San Bernardino did not have an authorized vote under the auspices of the National Labor Relations Board. Instead, they used a process known as “card check,” by which a majority of the employees indicated their desire to be unionized under the banner of the Teamsters by submitting a written declaration – a card – stating that is their desire.
Completely different views
There is a stark difference between what the Teamsters are saying about what is happening at San Bernardino and what Amazon is saying.
“Over 1,000 Amazon workers at the company’s KSBD air hub in Southern California have formed a union with the Teamsters and demanded union recognition,” the Teamsters statement said. “The KSBD warehouse in San Bernardino is a crucial hub in Amazon’s logistics network and the largest air facility on the West Coast.”
That is not the way Amazon sees it.
“There has been no vote or anything taken,” Eileen Hards, a spokeswoman for Amazon, told FreightWaves. “So it’s just the Teamsters saying that they’re representing some employees from our site, but we haven’t received anything from the NLRB. There’s been no certified vote. They’re totally misrepresenting the facts that they have unionized at KSBD.”
If the question of whether the card check process counts as unionization ends up before the NLRB, a decision from August 2023 by the NLRB that is considered groundbreaking may come into play in the agency’s decision-making.
Cemex case will be key
It involves Cemex Construction Materials Pacific and an NLRB case in which Cemex’s workers filed a complaint with the agency. A blog post last year from the California-based Swerdlow law firm about the NLRB’s Cemex decision was titled “A game changer for union organizing.”
In a post-decision commentary about the NLRB action, the Littler Mendelson law firm said the core components of the Cemex decision are that it adopted a “modified Joy Silk doctrine, which facilitates union organizing by card check instead of a secret ballot election”; and that it required that if a union presents a company with a majority of employee-signed cards, the employer needs to either “recognize and bargain with the union” or ask for what is known as an RM petition that serves as a second-level polling of the rank and file to determine if they really do want the union.
The Joy Silk doctrine, according to the National Law Review, was in effect from the 1940s until 1969. The doctrine, according to the Law Review, was that “once a union asserted majority status based on authorization cards, the burden of proof rested with the employer to demonstrate that it had a ‘good faith doubt’ as to the union’s majority status.”
With the Cemex decision, the main thrust of Joy Silk has returned.
A spokeswoman for the Teamsters did not mention Cemex directly. But it appeared to be at the center of her answer about whether the Amazon workers at San Bernardino could legitimately be said to have voted to be represented by the Teamsters through their card check process.
“The law states Amazon must recognize a majority of authorization cards signed or challenge the legitimacy of the cards by filing RM petitions,” she said. “If [Amazon] had filed any RMs those would in fact be viewable on the NLRB’s website. But they have not.”
No contract on Staten Island but no strike either
Meanwhile, across the country on Staten Island, the Teamsters have said Amazon is not negotiating for a new contract. “The workers are demanding that Amazon come to the table to bargain a contract,” the spokeswoman said in an email to FreightWaves. “The company has not done that.”
The Teamsters local at Staten Island authorized a strike that could have started Sunday, but workers as of Tuesday were still on the job.
Headlines about the vote to authorize a strike at Staten Island were accompanied by a similar vote at an Amazon facility known as DBK4. It is in Queens, one of the other boroughs of New York City and a site that services John F. Kennedy airport.
The drivers at DBK4 across several DSPs based there only recently voted to affiliate with the Teamsters, according to the union. As was the case at KSBD, it was through card check, rather than an NLRB-administered vote.
But in the same way that Amazon and the Teamsters disagree on the status of the workers at San Bernardino, there is disagreement about the legal status of the workers at DBK4.
That is because those workers are employees of the DSP company working out of DBK4. Their annual W-2 statement would not list Amazon as their employer.
But it isn’t that simple, because there is a process making its way through the NLRB that builds on an earlier decision, from the NLRB’s Regional 31 board, that found Amazon was a joint employer along with a DSP, Battle Tested Strategies (BTS), which serviced Amazon out of Palmdale, California.
But BTS is also the only DSP believed to have recognized the Teamsters when its rank and file voted to be represented by the union. Soon after that recognition, BTS’ contract to serve as a DSP was yanked.
Amazon drivers…or not
The Teamsters views the decision on the Palmdale workers so far as affecting a wider swath of drivers at DSPs who have voted to be represented by the Teamsters. It’s a point the union’s spokeswoman made when discussing DBK4.
“The workers who organized with the Teamsters at DBK4 are drivers,” she said. “The Teamsters are demanding Amazon negotiate. As the NLRB in the case of Palmdale determined, Amazon is a joint employer of its drivers, and therefore has a legal duty to recognize and bargain with the Teamsters. This determination sets a major precedent and is applicable to Amazon drivers who work under similar conditions nationwide.”
The Teamsters have been pushing the idea that drivers at DSPs who have voted to be represented by the union are employees of Amazon; the union regularly refers to them in press releases and social media content as “Amazon drivers.”
Asked if Amazon ever gets involved in negotiations with DSP employees, Hards said the company does not.
It is likely that if Amazon did get involved, it would lend credence to the argument that the NLRB will take up: that Amazon is a joint employer with the DSPs and that the latter group of companies is not truly independent, a classification Amazon would very much like to avoid.
The next step in the Palmdale case to determine whether Amazon is a joint employer with its DSPs will be a regional NLRB hearing in Los Angeles on March 25.
The list of workers at DSPs who would be impacted by an NLRB decision that Amazon is a joint employer continues to rise. News releases by the Teamsters, as well as data from the NLRB, list several organizing victories among DSP drivers in recent months at various locations.
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