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. “That’s someone I love,” the gangster tells Marlowe. “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. Last month, JFK8 became the first Amazon facility in the United States to unionize. The firings (the identities of those let go have not been made public) looked very much like a warning to other managers: Lose a union election, and you will lose your job.
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. “At all of these places,” Lichtenstein told me, “lower-level management is unreliable as union-busters because they’re often recruited out of the workforce itself.” Once the union drive begins, Lichtenstein said, the first thing upper management does is rent a hotel conference room and haul in these supervisors. “They say, you guys are going to be the shock troops,” Lichtenstein said. “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. Over the last several weeks, we’ve spent time evaluating aspects of the operations and leadership at JFK8 and, as a result, have made some management changes.
That isn’t confirmation that these people were fired because the plant unionized. But it isn’t exactly a denial, either. When I emailed the Amazon press representative who sent me Nantel’s statement and asked for clarification, I received no reply. It’s certainly difficult to ignore that “the last several weeks” coincided with the aftermath of the union 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? “It strikes me,” said Moshe Marvit, a labor lawyer and fellow at the Century Foundation, “that they want this to be the news.” If they didn’t, he said, they’d just wait until each manager came up for his 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. One was Tristan Dutchin, who works at the JFK8 plant. The other was Mat Cusick, who works in the adjoining DYY6 warehouse. That these firings occurred all at once made it seem even likelier that they were part of the same purge.
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. They won’t collect damages, though, because the National Labor Relations Act doesn’t provide for any. That explains why businesses are usually pretty relaxed about illegal firings of union troublemakers. 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. That’s because NLRA protections, such as they are, apply only to labor, 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. A superior told Lewis, in defiance of the NLRA, to fire two workers who were trying to organize a union. Lewis refused and was demoted. Three years later, Lewis was fired. He had been with the company 30 years.
Lewis filed a complaint with the NLRB in 2007. This was during the administration of President George W. Bush, which may or may not have had any bearing on the outcome. A regional NLRB director said Lewis had no case because he didn’t establish that he was fired specifically for refusing to violate the NLRA. Thus rebuffed, Lewis filed suit in federal court, where his case was dismissed. Lewis then appealed to the Sixth Circuit—and lost again, because the court ruled his NLRB complaint had been rejected on the merits and not for jurisdictional reasons. 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. “I myself was unlawfully terminated for engaging in protected workplace organizing,” Smalls said. Even if half the allegations didn’t hold up, it could still be pretty hard to find any Amazon managers with clean hands. (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. Corporate managers and their allies in Congress viewed an alliance of unionized workers with unionized supervisors as not only a grave challenge to workplace hierarchy but also a grave threat to class hierarchy and, indeed, American social stability.
With Taft-Hartley, the business lobby got its wish. No more unions for supervisors.
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. Narrowing rather than eliminating the supervisor exemption, he wrote, would inspire “chronic parsing” that would tie up the courts endlessly. Better just to let supervisors form labor unions if they want.
“The higher up the ladder there is a failure of complete ruthlessness,” Yeselson told me, “the more anxiety” that will give upper management. The big bosses don’t like to see middle or lower management go wobbly. It certainly seems that sort of anxiety prompted Amazon to make an example of the Staten Island managers. The PRO Act would narrow the NLRA’s supervisor exemption to those whose supervisory activities take up the majority of their work hours and would limit the exemption in other ways too. But even if the PRO Act passed tomorrow, it would come too late for the Amazon managers who lost their jobs last week. Someone has to take the fall for the JFK8 warehouse acquiring a labor union, and it was never going to be Jeff Bezos.