Amazon and Trump’s NLRB: So Happy Together!

It’s been an instructive couple of weeks for those of us who hunger for news of Jeff Bezos and Amazon, his trillion-dollar toy. In California, news came of an antitrust lawsuit filed by the state against the company that alleges Amazon pressured Levi’s and Hanes to get the entire pants industry to raise its prices on Amazon’s platform. Here in Washington, Amazon’s pledge to build a “second headquarters” across the Potomac in Crystal City, for which Virginia is subsidizing the company with a cool $750 million, continues to fall behind its targets. Having pledged to create 25,000 new jobs in its D.C.-adjacent HQ by 2038, Amazon failed to meet the agreed-upon schedule of creating 1,600 such jobs last year, with the number of its D.C.-adjacent employees actually falling by 73 instead. By now, that schedule had Amazon reaching 46 percent of its 25,000 newbies last year; instead, it’s created a bare 29 percent.

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Why Amazon ever needed a three-quarters-of-a-billion-dollars subsidy for its D.C. HQ remains a mystery, particularly since Jeff Bezos personally has enough money to buy all of Northern Virginia.

He clearly has enough money to buy Trump’s National Labor Relations Board, though I’m not alleging that he did. By virtue of Trump’s appointment of an Amazon-friendly general counsel, any such purchase would be superfluous.

Until earlier this month, Board attorneys were prosecuting (to all appearances, successfully) Amazon for sundering its contract with one of the many hundreds of companies that make Amazon’s last-mile deliveries, in Amazon trucks whose drivers wear Amazon uniforms and guide themselves in every particular by Amazon’s rule book. The NLRB had charged Amazon under the joint-employer rule established by the Trump-dominated NLRB during his first term as president, which determined that when a company actually controls the independent contractors that fulfill the company’s work, that company—in this case, Amazon—is to be considered a joint employer and, in this case, legally liable for laying off the delivery company’s drivers because they had voted to join the Teamsters.

Last September, I sat in an NLRB hearing room in Los Angeles where Board attorneys were prosecuting Amazon for breaking its contract with Battle-Tested Strategies, a company based in the L.A. exurb of Palmdale, founded and run by Air Force veteran Johnathon Ervin. When the company’s 84 drivers voted to join the Teamsters, Ervin bargained a contract with them that raised their wages. With that, Amazon severed its contract with the company, lest it be found to be a joint employer that thereby had a contract with, horror of horrors, a union.

Ervin was on the stand the day I was there, answering questions about Amazon’s status as controlling employer in all but name. As I then wrote in the Prospect, the NLRB attorney

asked Ervin whether he had received specific documents from Amazon, and whether he’d put the directives in those documents into effect. These documents covered every conceivable aspect of employer-employee relations: what he must do if an employee was late for work, what Amazon documents he must tell his drivers to consult if they encountered a wide range of difficulties, what circumstances required him to give a bonus to a driver and how much that bonus should be, and so on.

Ervin would respond that he remembered receiving the specific documents, and that he’d complied with them. At times, [NLRB attorney Sanam] Yasseri asked him if he had played any role, or had the option of playing any role, in formulating those documents. Ervin responded that he hadn’t; they were all entirely Amazon’s creations.

After Ervin had identified a document and testified that he had implemented its directives, Yasseri would then introduce it into evidence. By the time the court recessed for the day, at around 5 p.m., she was up to Exhibit #89, but there were more to come, and Ervin would have to resume his testimony the following day.

During this testimony, Amazon’s attorneys made a few desultory objections, but largely sat silent as the evidence against Amazon’s claim that it was not a joint employer continued to pile up. After a host of delays, occasioned in part by the government shutdown, the trial was set to continue last week.

But it didn’t. On Monday, April 13, the NLRB attorneys announced they’d reached a “settlement” with Amazon in which the charge that the company was really a joint employer was dismissed, in which Amazon was neither penalized for severing its contract with BTS nor penalized for severing it because it illegally refused to recognize its drivers’ union status. Under the terms of the settlement, Amazon did agree to pay the workers, who’d been laid off more than two years ago, an entire two weeks’ worth of wages.

Two weeks. Not two years, not two months. Two weeks.

The terms of this settlement were not negotiated by the NLRB attorneys actually prosecuting the case, which they appeared certain to win. Rather, the settlement came from Trump’s appointee as the NLRB’s general counsel, Crystal Carey, about whom I’ve written previously. Before she took that position, Carey was a partner at the anti-union firm of Morgan Lewis, which represented Elon Musk’s SpaceX in its lawsuit to have the NLRB declared unconstitutional. Carey herself had co-authored an article with her fellow Morgan Lewis partners arguing that the Board had been exceeding its powers since it was established in 1935 by interpreting labor law, which, she contended, should have been left to the courts.

Morgan Lewis currently represents Amazon in a number of other labor-related cases. But it doesn’t represent Amazon in the Palmdale case I sat in on, and Carey has told Bloomberg Businessweek’s Josh Eidelson that because Morgan Lewis isn’t involved in that particular case, and because it’s been (a little) more than a year since she represented Amazon herself while at Morgan Lewis, she didn’t have to recuse herself from overseeing that case.

It’s now up to the administrative judge hearing that case, Rebekah Ramirez, whether to accept that settlement. If she does, the third party in that case, the Teamsters, would likely appeal the settlement to the NLRB, and then, if needs be, to federal court.

This is a case with broad implications. Were Amazon to be found to be what it actually is—the joint employer of the many thousands of drivers who make its deliveries—it would be subject to all the legal obligations that employers must meet, and liable for violations of health and safety standards and for denying the rights of its drivers to unionize. Then again, as is clear from its four-years-and-counting delay in commencing bargaining with its Staten Island warehouse workers who voted to go union in 2022, Jeff Bezos’s company is an accomplished law delayer (or, if you prefer, defier). Of course, it helps when the top prosecutor charged with ensuring its compliance is as understanding as Crystal Carey.

The post Amazon and Trump’s NLRB: So Happy Together! appeared first on The American Prospect.