Home Global Amazon to Managers: Can’t Bust a Union? You’re Fired.

Amazon to Managers: Can’t Bust a Union? You’re Fired.

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Amazon to Managers: Can’t Bust a Union? You’re Fired.

There’s a horrifying scene in Robert Altman’s 1973 adaptation of Raymond Chandler’s The Long Goodbye, in which a ruthless gangster intimidates the detective Philip Marlowe by smashing a Coke bottle against his own girlfriend’s face. Marlowe is told by the gangster, “That’s somebody I love.” “You I don’t even like.”

I flashed back to that ghastly moment when I read in The New York Times that Amazon fired “more than half a dozen senior managers” last week who were “involved with” Amazon’s JFK8 warehouse in Staten Island. JFK8 was the first Amazon warehouse in America to become unionized last month. These firings, whose identities have not yet been released, looked almost like a warning for other managers. Losing a union election will result in your job being terminated.

It wouldn’t be the first time a business punished lower-level managers for lacking the chops to bust a union, according to Nelson Lichtenstein, a labor historian at the University of California Santa Barbara. Lichtenstein explained to me that “at all these places” the lower-level managers are not reliable as union-busters, because they are often drawn from the workforce. Lichtenstein, a labor historian at the University of California Santa Barbara, said that once the union drive starts, upper management rents a conference room in a hotel and brings in the supervisors. Lichtenstein stated, “They tell you that these guys will be the shock troopers.” “If you don’t want to do it, you’re fired.”

We fire fainthearted managers is not Amazon’s official line, of course. “Part of our culture at Amazon is to continually improve,” Amazon spokesperson Kelly Nantel said in a prepared statement about the firings,

and we believe it’s important to take time to review whether or not we’re doing the best we could be for our team. We have been evaluating JFK8’s operations and leadership over the past few weeks and made some managerial changes as a result.

That isn’t confirmation that these people were fired because the plant unionized. It isn’t a complete denial. The Amazon representative sent Nantel’s statement to me and I asked for clarification. I did not receive a reply. It is difficult to forget that the “last several weeks” corresponded with the events following the vote. And if Amazon were not trying to send a message (“That’s someone I love”), why would it fire these managers all at once? Moshe Marvit, labor lawyer and fellow at Century Foundation said that it struck him “that they want the news to be this.” He said they would wait for each manager’s next job evaluation.

The same week Amazon fired the Staten Island Half-Dozen or So, it also fired a couple of Staten Island union organizers. Tristan Dutchin is a JFK8 worker. Mat Cusick works at the adjacent DYY6 warehouse. It seemed even more likely that these firings were part of the same purge because they occurred simultaneously.

If Dutchin and Cusick can furnish evidence to the National Labor Relations Board that they were fired for their union activity, Amazon will have to reinstate them with back pay. The National Labor Relations Act does not provide for damages. They will not be able to collect any damages. This explains why most businesses don’t worry about the illegal firing of troublemakers from unions. The Protecting the Right to Organize Act, which passed the House a year ago and is stalled in the Senate, would change that calculus by imposing penalties of up to $50,000 per violation and up to $100,000 per violation if the business is a repeat offender.

Even if the PRO Act cleared Congress, though–and there’s no chance it will this year–what Amazon did to the Staten Island managers might still be legal. Because NLRA protections only apply to labor and not management.

Or it might not be legal. Marvit directed me to a 2011 decision in the Sixth Circuit Court of Appeals, which sits in Cincinnati–somewhat conservative in 2011 and now considerably more so–that affirmed a manager’s firing can under certain circumstances violate the NLRA. The case, Lewis v. Whirlpool, concerned Timothy Lewis, a manager at a nonunion Whirlpool facility in Marion, Ohio. Lewis was told by his superior to dismiss two union organizers. Lewis declined and was fired. Lewis was finally fired three years later. He had been with the company 30 years.

Lewis filed a complaint with the NLRB in 2007. The incident occurred during President George W. Bush’s administration, so it may have been a factor in the final outcome. The regional director of the NLRB said Lewis didn’t have a case as he did not prove that he had been fired for refusing violate the NLRA. Lewis then filed suit at federal court and his case was dismissed. Lewis appealed again to the Sixth Circuit, but this time the court ruled that his NLRB complaint was rejected for merits and not because of jurisdictional grounds. But the ruling made clear that “a supervisor does have a viable claim under the NLRA when terminated or otherwise disciplined for refusing to commit unfair labor practices.” Consequently, if the fired Amazon managers can prove (as Lewis could not) that Amazon fired them out of frustration that they weren’t willing to violate labor laws, they might have a case before the NLRB.

But don’t hold your breath. Christian Smalls, president of the Amazon Labor Union, told a Senate committee last week that the union’s filed more than 40 charges alleging labor violations in connection with the Staten Island campaign. Smalls stated that he was terminated illegally for participating in protected workplace organization. It could be difficult to find Amazon managers who aren’t guilty of all the accusations, even if only half of them were true. (One of the allegations concerns captive meetings, which NLRB General Counsel Jennifer Abruzzo is trying to get the board to outlaw as an unfair labor practice. )

What the fired Amazon managers could really use is a labor union. Unfortunately, the anti-union 1947 Taft-Hartley amendments to the NLRA made supervisors ineligible to join unions. As Rich Yeselson, who’s writing a book about Taft-Hartley, pointed out in a 2019 article for The American Prospect, businesses were champing at the bit to eliminate the Foreman’s Association of America, which during World War II had

staged strikes against major companies, and signed a contract with Ford in 1944. An alliance between unionized workers and unionized supervisors was seen by corporate managers and their allies at Congress as a serious threat to the workplace hierarchy, and a grave threat for class hierarchy and American social stability.

With Taft-Hartley, the business lobby got its wish. There will be no more supervisor unions.

In their 2020 presidential campaigns, Elizabeth Warren and Bernie Sanders pledged to narrow Taft-Hartley’s definition of “supervisor” to exclude construction foremen and charge nurses. But that wasn’t good enough, Yeselson argued in his Prospect piece. He wrote that limiting the exemption for supervisors would encourage “chronic parsing”, which would tie up courts indefinitely. It is better to allow supervisors to form unions, if they wish.

“The higher up the ladder there is a failure of complete ruthlessness,” Yeselson told me, “the more anxiety” that will give upper management. Big bosses hate to see lower or middle management stumble. Amazon certainly took note of Staten Island’s managers and made a reference to them. PRO Act will limit the NLRA supervisor exemption and reduce exemptions in other ways. Even if the PRO Act were passed, it wouldn’t be enough time for Amazon managers who lost work last week. Jeff Bezos was not going to accept responsibility for JFK8’s acquisition of a labor union.

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