Co-published with the Center for Law and Work (CLAW) at Berkeley Law

EXECUTIVE SUMMARY

On March 11, 2022, Amazon announced a new policy on freedom of association under international standards.[1] Citing International Labor Organization and United Nations principles, Amazon pledged to comply with global norms on union organizing and collective bargaining, even when national labor law reflects a “gap in governance” with international standards.

This assessment shows that Amazon’s freedom of association policy, on its face, is non-compliant with international labor standards, and Amazon management’s conduct before and after issuing the policy continues to violate international standards.

Non-compliant on its face

Amazon’s March 11^th statement on Freedom of Association and Collective Bargaining contains no specific references to ILO Conventions 87 and 98, which are the foundation of international freedom of association standards. It makes no reference to the OECD Guidelines for Multinational Enterprises and OECD policy prescriptions urging “a positive approach towards the activities of trade unions and an open attitude towards organizational activities of workers.”

Rather than embracing global norms, Amazon’s March 11^th policy statement promotes its preferred “direct” (i.e., non-union) relationship with employees, marked by various open-door forums in which workers remain subordinate, dependent, vulnerable, and powerless before Amazon management. In contrast, international standards protect workers’ rights to independently choose their own organizations and their own leaders to engage in arms-length collective bargaining with employers and to defend employees against management mistreatment.

The key international standard and Amazon’s violations

The polestar international principle on freedom of association is that of non-interference in workers’ organizing. This rule prohibits imposing pressure, instilling fear, and making threats of any kind that undermine workers’ right to freedom of association, as well as prohibiting discrimination against workers for union activity.

Instilling fear

Both before and since issuing its March 11^th freedom of association policy statement, Amazon has violated this non-interference standard. Management imposed pressure and instilled fear through a massive communications offensive in weeks leading up to union elections in Bessemer, Alabama, and Staten Island, New York, led by anti-union consultants paid thousands of dollars per day by Amazon.[2]

Anti-union discrimination

In a case involving the discharge of a union activist in Staten Island, an NLRB administrative law judge ruled on April 18, 2022, that:

• Amazon conducted “an ostrich-like, head in the ground, investigation.…”
• Amazon “rushed to judgement and was more concerned about justifying the discharge of [the employee] than conducting a good-faith investigation to determine what actually occurred.…”
• Amazon’s “stated reason for discharging [the employee] was a pretext for his protected concerted activity.”

The judge ordered Amazon to reinstate the victimized worker with back pay.[3]

Workers’ choice—and Amazon’s defiance

In the face of this offensive, a majority of Staten Island workers voted in favor of union representation by the Amazon Labor Union.[4] In Bessemer, Alabama, results of the NLRB election for representation by the Retail, Wholesale and Department Store Union (RWDSU) are still pending while the status of over 400 challenged ballots is resolved.[5]

Amazon has refused to accept the vote results in Staten Island and has begun a process of objections and appeals that could take years to resolve, nullifying workers’ freedom of association.[6] And rather than honor the judge’s ruling in the discriminatory discharge case, Amazon immediately announced an appeal to the full five-member Board in Washington, a process that normally takes one to two years to run its course, and then Amazon can appeal to the courts for several more years.[7]

Recommendations

Amazon needs to go back to the drawing board to produce a credible freedom of association policy—and then implement it. Essential elements of a genuine freedom of association policy consistent with international labor standards include specific reliance on ILO Conventions 87 and 98 and commitment to the principle of non-interference with workers’ exercise of the right to freedom of association.

At a minimum, a freedom of association policy should emphasize:

• Not hiring anti-union consultants to wage campaigns against workers’ organizing efforts;
• Not forcing workers into anti-union captive-audience meetings;
• Not creating anti-union websites or using company communication systems to convey anti-union messages;
• Not disparaging, deriding, or otherwise attacking unions;
• Not telling workers that “management starts bargaining at minimum wage” or that workers could lose pay and benefits if they form a union;
• Not telling workers that management will replace them if they exercise the right to strike;
• Not refusing access to the workplace for union representatives to discuss organizing with employees under ILO rules (which specify that such access must be accompanied by “due respect for the rights of property and management”).

Amazon should include in a recast policy a concrete, operational due diligence process in line with the UN Guiding Principles to ensure implementation of the policy, including a process for remediation when the policy is violated. The company also should negotiate a “framework agreement” or other instrument on freedom of association with national and global unions whose affiliates represent Amazon workers or to whom Amazon workers have turned for assistance in organizing. Such an agreement would establish that Amazon is truly committed to implementing a policy guaranteeing workers’ rights to freedom of association and collective bargaining.

Read the full report.

Endnotes

[1] Amazon, “Amazon’s Human Rights Commitment, Policy and Practice: Freedom of Association and Collective Bargaining,” March 11, 2022, at https://www.aboutamazon.com/news/policy-news-views/amazons-human-rights-commitment-policy-and-practice.

[2] John Logan, “How Amazon’s Anti-Union Consultants Are Trying to Crush the Labor Movement,” Labor Online, March 22, 2021, at https://www.lawcha.org/2021/03/22/how-amazons-anti-union-consultants-are-trying-to-crush-the-labor-movement/; see also Noam Scheiber, “Mandatory Meetings Reveal Amazon’s Approach to Resisting Unions,” The New York Times, March 24, 2022, at https://www.nytimes.com/2022/03/24/business/amazon-meetings-union-elections.html.

[3] NLRB, Decision of Administrative Law Judge Benjamin Green, Amazon.com Services LLC and Gerald Bryson, Case No. 29-CA-261755, April 18, 2022, at https://apps.nlrb.gov/link/document.aspx/09031d4583739076.

[4] Karen Weise and Noam Scheiber, “Amazon Workers on Staten Island Vote to Unionize in Landmark Win for Labor,” The New York Times, April 1, 2022, https://www.nytimes.com/2022/04/01/technology/amazon-union-staten-island.html.

[5] Noam Scheiber, “Union Trails in Amazon Vote in Alabama, With Challenges Pending,” The New York Times, March 31, 2022, at https://www.nytimes.com/2022/03/31/technology/amazon-union-election-alabama.html.

[6] Rachel Lerman, “Amazon Filing Outlines Plans to Fight The New York Union Vote,” The Washington Post, April 8, 2022, at https://www.washingtonpost.com/technology/2022/04/08/amazon-union-vote-objections/.

[7] See Aaron Gregg, “Judge Orders Amazon to Reinstate Fired Worker, Pay Lost Wages,” The Washington Post, April 19, 2022, at https://www.washingtonpost.com/business/2022/04/19/amazon-union-worker-nlrb-staten-island/.