An Amazon-sponsored billboard asking employees to return their union votes can be seen in Bessemer, Alabama on March 28, 2021.

Elijah Nouvelage | Getty Images

Amazon employees around the world are eagerly awaiting the results of a high-level union election at one of the company’s warehouses in Bessemer, Alabama.

The vote was held on March 29th to see if around 5,800 BHM1 warehouse employees will join the retail, wholesale and department stores union. The vote count started the next day and the public part of the vote is expected to start on Wednesday.

The effort has become one of the most momentous union elections in recent history. If they win, workers would form the first union at a U.S. Amazon plant, which is a great victory for workers in the face of determined Amazonian anti-union efforts.

The elections are closely monitored by workers, labor representatives, politicians and other groups to see if they can stimulate future attempts at organization elsewhere. RWDSU has heard of more than 1,000 US Amazon employees ready to organize.

Given the ballots received and the ongoing vote count, Amazon and the union appear to be nearing the finish line in the elections. But the process is probably far from over. Both sides can contest ballots and depending on the outcome of the vote, further litigation could be on the way.

If union elections continue, the following can be expected:

What’s happening now

A week ago, Tuesday, the first phase of the counting began via a private video conference. During this section, the National Labor Relations Board will call out the name of each voter listed on a yellow envelope containing a sealed blue envelope with the ballot marked on it. The actual ballot paper listing each employee’s vote is anonymous.

Amazon and the union can dispute ballots based on factors such as whether an employee’s job title is eligible for voting or an illegible signature. Employee eligibility could turn out to be the main reason for controversial ballot papers as sales in Amazon warehouses can be high. In addition, Reuters reported last month that ballots were sent to some employees who no longer work at Amazon.

If the envelope is challenged, it is set aside. If not challenged, the NLRB will remove the blue ballot envelope and put it in the ballot box.

It is unclear how many ballots were cast by the 5,800 employees eligible to vote, but it is likely that the NLRB will have to sort thousands of envelopes. The sheer size of the negotiating unit, coupled with the fact that the votes were cast by post, has meant that the electoral process has taken longer than usual.

On March 28, 2021 in Bessemer, Alabama, signs reading “Vote” are posted outside the Amazon.com, Inc. BHM1 fulfillment center.

Patrick T. Fallon | AFP | Getty Images

“Having such a large facility increases the time it takes to count,” said Mark Pearce, NLRB chairman during the Obama administration and executive director of the Workers’ Rights Institute at Georgetown University Law Center. “So the schedule for a final count is pretty fluid.”

Last Friday, the NLRB looked through half of the ballots that had been sent in and put them on the right track to start the public part of the vote count as early as Wednesday, although the date could be postponed.

Once the private part is completed, the NLRB begins counting the undisputed ballots in a public session open to members of the media. To win, the union needs a simple majority of the votes cast in Amazon’s Bessemer camp.

If there are enough challenged ballots to affect the outcome, final settlement will be temporarily paused until those challenges are resolved. “It also leaves more time on the clock before a final result is achieved,” said Pearce.

Future challenges could lengthen the process

Challenged ballots aren’t the only process that could add length to the process.

After the ballots are counted, either Amazon or the RWDSU can object to the behavior during the election. These objections must be submitted to the Regional Director of the NLRB within five days of the final balance sheet. The Regional Director will investigate the allegations and, if there is sufficient evidence, schedule a hearing for each side to provide evidence.

For example, an employer could argue that a union gave gifts to fluctuating voters, or the union could lodge an objection or an unfair labor practice charge, saying that the employer issued increases to get workers to vote no said Pearce.

Amazon could be in hot water when it comes to a specific benefit program, Pearce said. The company has an annual program known as “The Offer,” which gives full-time employees the option to step down from their role in order to receive an exit bonus starting at $ 1,000.

“The offer” would not be considered illegal outside of an election, but the NLRB could view the program as an election violation during a union campaign under the guise of violating workers’ rights protected by the National Labor Relations Act, Pearce said.

“If this program is not suspended, objections and charges of unfair labor practices will certainly be raised,” Pearce said. “The complaint could be that this program inherently destroys a worker’s right to union formation, even if the employer claims there is no evidence of illegal motivation.”

People protest in Los Angeles, California on March 22, 2021 to support workers’ union efforts in the Alabama Amazon.

Lucy Nicholson | Reuters

The union could also object to the placement of a US Postal Service mailbox in the warehouse during the election. Labor experts said the mailbox, which was surrounded by a tent and a sign from Amazon asking workers to vote, could unduly influence workers by claiming Amazon was involved in the collection and counting of ballot papers. Amazon told AL.com in a statement that the box was installed by the US Postal Service and that the USPS is collecting email from the box.

An Amazon spokesperson did not immediately respond to a request for comment on the status of its withdrawal bonus program or the mailbox in the Bessemer camp.

The voting outcome challenges may not end at the NLRB Alabama office. Either party can appeal the Regional Director’s decision to the NLRB Board of Directors in Washington. The board could order a new election to be held, or if the board determines that the behavior was exceedingly egregious, they could instruct Amazon to negotiate with the union.

The board of directors, which functions as a court-like body, usually consists of five members. However, one seat remains vacant after Pearce ended his term in August 2018. The Republicans have a 3-1 majority on the board, but a seat will be available when the Trump-era William Emanuel term expires in August.

“What the state of it will be when this has to be put on the board is everyone’s guess,” said Pearce. “It could very well be that it will be a time when you have two Democrats and two Republicans and a resolution could be challenging because it might be too tight.”

There is still a lot to be done before the elections for the NLRB headquarters can escalate. With all eyes on Bessemer, Pearce said, the public should feel reassured if the NLRB treats union elections wisely.

“Tension will build up as the process goes on, but I know the local people who run the elections are committed people,” Pearce said. “The process will have a high level of integrity.”