On June 26th, one hundred drivers have who organized with Teamsters Local 705 demanding that Amazon recognizes and bargains with their union. As driver Luke Cianciotto said in a union statement “Every Amazon driver knows who our true employer is, . . . We wear their uniforms and drive their trucks.” While these drivers are enthusiastic about their fight against Amazon, unfortunately, these drivers are technically employed by an Amazon subcontractor, Four Star Express Delivery, is one of 2,500 “delivery service partners” (DSP) that carry out package deliveries for Amazon. Amazon therefore has claimed that they are not required to bargain with these employees. Amazon is using one of the huge gaps in the administration of the NLRA, the Joint Employer Rule to get away with this, even though they completely control all delivery aspects of the DSPs, how many packages to deliver, delivery time frames, etc. Not only is Amazon refusing to bargain with these employees, the company ended the contract with Four Star within days of the workers notifying Four Star that they had signed up most of the workers. Since Amazon is the only customer that Four Star has, the workers have all been laid off. Amazon followed the same strategy with another DSP, Battle-Tested Strategies in Palmdale, California, after 84 drivers organized with the Teamsters, and in that case, the Amazon subcontractor voluntarily recognized the Union and negotiated a contract in April 2023. Amazon then canceled its contract with Battle-Tested in June of 2023. Again, all drivers of Battle-Tested wound up being laid off. Because Amazon can claim it is not a Joint Employer, traditional remedies like the filing of unfair labor practice charges will not help these workers
This Joint Employer Rule gap is not the only one under the NLRA, but it bears some looking into to see what workers are up against when they try and organize in the U.S.A. The current Joint Employer Rule was adopted by the NLRB on April 27, 2020. However, the current Board, seeing some of the shortcomings in the then-existing rule, made changes and promulgated a new rule on Oct. 27, 2023. All business commentators noted that this new rule would have altered things in favor of workers who had their conditions controlled by two employers. Almost immediately the new Rule was challenged in Court and initially overturned, although it is going through the legal appeals process. Not satisfied with that, business interests managed to get their lackeys in both Chambers of the U.S. Congress to pass Resolutions overturning the new rule in April. However, President Biden vetoed the Resolution. As we said, this is not the only gap in the NLRA that makes it difficult for workers to get their Union certified and negotiate a first contract. Another gap is that the NLRB cannot place monetary fines against an employer that violates workers’ rights under the NLRA. So, we see employers like Starbucks violating the law rather than negotiating with the Union or Amazon refusing to accept the certification of the Amazon Labor Union and delaying getting to the negotiations. Employers, in general, routinely brandish legal and illegal tactics, e.g. captive audience meetings, employee discipline, etc., to prevent workers from voting to unionize as has been cited in studies by Elaine Bronfenbrenner and others.
Another significant gap is that the NLRA does not have a time requirement or deadline for Management to reach a first contract with a newly certified Union. Analysis published in 2021 by Robert Combs at Bloomberg Law confirms that long delays to first contracts are still the norm. Combs used 2005–2022 data and found that the average time-to-contract was well over a year (465 days). In the most recent period covered in the Bloomberg data—2020–2022—the mean time to contract ratification was over 500 days. A reason often cited for this long delay is that employers will continue to use the same legal and illegal strategies that they used in organizing drives in the period of negotiations for a first contract.
How can workers overcome some of these challenges? Obviously, the working class needs to develop its political strength so that legal improvements can be attained. Unions and their allies have for several years been trying to get Federal legislation, the Protecting the Right to Organize (PRO) Act was passed, but it has always died on the vine while business-oriented legislation has no problem sailing through.
A significant protection for workers would be the ability to collect unemployment benefits while on strike, especially when management is dragging its feet on a first contract or violating Labor laws. Also looking at different processes under the NLRA model might help. For example, the law currently allows an employer to implement its final offer if an impasse is reached. Why not grant the same right to workers, that management would have to accept the Union’s final offer?
A strategy not often employed in the U.SA., but one that would avoid all of the traps and quicksand inherent in the NLRA model is for workers and Unions to utilize solutions like worker-owned cooperatives. However, a report from 2019 by the Democracy at Work Institute (DAWI) and the US Federation of Worker Cooperatives confirms steady growth in the number of worker cooperatives across the country. The study shows that the rate of new start-ups each year remains steady at about 25 new firms per year, while the number of businesses that have converted to employee ownership has grown slightly.
There are some interesting examples where this strategy has helped workers. One of the more famous examples occurred in Chicago where workers, the UE, and community allies turned a failing capitalist enterprise, Republic Windows and Doors, that had laid off all of its employees, into a worker-owned cooperative. That Cooperative, New Era is still successfully in operation. Some smaller, mostly food service industry workers have also used worker cooperatives to either keep a business running or use it to win a fight against a boss not willing to recognize their Union. In an example of the latter, workers at White Electric Café bought the company and avoided the drawn-out processes of an NLRA election and certification.
Would a worker-owned cooperative be an option for the drivers of an Amazon DSP? At first glance, no, because the DSP leases its vehicles from Amazon and so the equipment would not be readily available. But if the Union and the workers turned Four Star Express into a cooperative, it might give them another avenue to fight against Amazon. Not by claiming that Amazon was a Joint Employer, but by bidding on the work. If Amazon didn’t choose them as a DSP, the claim could be one of anti-union animus based on ownership of the cooperative. Turning a company into a worker cooperative in Illinois is facilitated by the Limited Worker Cooperative Association Act passed in 2019 through the efforts of the Centro de Trabajadores Unidos: United Workers’ Center and its allies.
Let’s see if the revitalized U.S. Labor Movement we have seen in recent years can face the challenges of a system developed in the 1930s and been mostly twisted since then to provide little of the protections hoped for by the massive CIO organizing of that era. Will new strategies emerge and be adopted, like worker coops and calls for a Nationwide strike, or will the Unions merely look to make piecemeal reforms? As always, the working class can help push the Unions to adapt and adopt new strategies.
SOURCES:
https://labornotes.org/2024/06/illinois-amazon-drivers-strike-demand-union-contract
https://www.paychex.com/articles/compliance/nlrb-joint-employer-final-rule#1HowDid
https://www.senate.gov/legislative/LIS/roll_call_votes/vote1182/vote_118_2_00122.htm#top
https://onlinelibrary.wiley.com/doi/full/10.1111/irj.12399
https://uniontrack.com/blog/first-contract
https://www.theguardian.com/us-news/2023/nov/13/amazon-drivers-union-fired-strike
https://centrodetrabajadoresunidos.org/what-we-do/worker-co-op/
https://www.thenews.coop/worker-co-op-sector-continues-to-grow-in-the-usa/