After the vote count was announced Thursday, the outcome of the election to unionize Amazon’s Bessemer, Alabama, warehouse still hung in the balance. The tally stands at 993 votes against unionizing and 875 in favor; however 416 ballots remain challenged, mostly on the grounds of voter eligibility.
The National Labor Relations Board will hold a hearing in the next few weeks to determine if any of the challenged ballots should be counted. Afterwards, it will release a final count that will determine which party wins the election.
Meanwhile, the Amazon Labor Union leads in an election to unionize a Staten Island warehouse, which is expected to conclude tomorrow.
The election was held again in March after the union lost the original vote 1,798 to 738 last year, and Amazon was later found to have violated labor law by installing a mailbox on its premises and using “Vote no” paraphernalia to poll workers.
The gap between yes and no votes narrowed considerably this year, but not enough so far to alter the outcome. Roughly 2,300 out of 6,100 eligible voters cast ballots this year, a turnout rate of 38 percent. This was down from last year’s turnout rate of 52 percent.
The union has filed unfair labor practice charges with the National Labor Relations Board and has until April 7 to file objections to the conduct of the election. If the board determines that Amazon’s behavior interfered with a free and fair election, it could overturn the results once again, leading to a third election round. The charges include allegations that Amazon instituted a rule change limiting workers’ access to the facility during nonwork hours, and that it removed pro-union fliers from break rooms. The company denies these claims.
The vote count caps off a two-year-long effort that drew congressional attention, celebrity endorsements, a presidential pronouncement, and renewed focus on US labor law, which favors employers in union elections.It echoed far beyond a single warehouse. As one of the world’s largest employers and the second largest in the US, Amazon is seen as a standard setter for working conditions across industries. Many in the labor movement see unionization as vital to curb what they describe as a harsh work environment. Amazon, for its part, urged its employees to vote against the union, saying that it already offers everything workers are demanding.
In a statement about the Bessemer facility, which Amazon calls “BHM1,” company spokesperson Kelly Nantel wrote, “We invest in both pay and benefits for our team—regular full-time BHM1 employees earn at least $15.80 an hour and have access to health care on day one, a 401k with company match, and more.”
The effort began humbly enough. In 2020, a warehouse worker named Darryl Richardson, who had previously been a union member at an automobile factory, performed a Google search for a union who could represent Amazon workers. The Retail, Wholesale, and Department Store Union (RWDSU) surfaced in the results, so he filled out a form on its website.
A year ago, Anna (not her real name) would spend eight hours a day driving for food delivery platforms Just Eat and Deliveroo to earn £150 ($200 USD) a day in her home city of Belfast, Northern Ireland. Now to get close to that figure, Anna says she has to work 12-hour days. That’s before she subtracts tax, insurance, and fuel out of her earnings.
Like many platform workers, Anna—who asked that we not use her real name because she’s worried Just Eat could terminate her account—says she is trapped between pay cuts made by delivery platforms, increased competition for jobs, and the rising cost of fuel. Anna relies on diesel, which spiked this month to a UK record of 179 pence per liter ($8.95 per gallon), partly in response to the war in Ukraine.
“The increase of fuel and all living costs have just gone through the roof,” she says. “During this time, Just Eat has dropped their prices, and it’s just not right.”
Platform workers who say their wages are being eroded by rising costs are going on strike this week. Anna is planning to join other Just Eat, Deliveroo, and Uber drivers to take part in a six-hour strike in Belfast on Wednesday, organized by the App Drivers and Couriers Union (ADCU). “We’re just trying to get the price back up to somewhere where we’re not working on a loss,” she says.
The ADCU claims Just Eat has slashed its fees by 25 percent, a figure Just Eat disputes, although the company has provided no alternative number. That pay cut brings its fees in line with the “already abysmally low” rate paid by other companies operating in the city, including Deliveroo, according to the union. Deliveroo declined to comment on the impact of rising fuel prices on its workers’ earnings.
Similar grievances among Just Eat workers are not only being raised in Belfast, where the company only uses self-employed couriers—they follow other protests already taking place across the UK. In March, Just Eat drivers in the southern English region of Kent also went on strike, demanding higher wages to compensate for soaring fuel prices. Just Eat and Deliveroo drivers held several strikes in another town in the eastern English region of Essex.
“Everything is going up, but the amount they are paying us is decreasing, and they are hiring more people, so it is becoming oversaturated, and there are not enough jobs,” Just Eat driver Jimmy Zane told local news.
The fuel crisis is sparking protests in another important European market for the gig economy: Germany. Workers for the Just Eat subsidiary Lieferando also went on strike on Tuesday in response to rising fuel costs. “Lieferando pays above-average mileage allowances with 30 cents per kilometer, which is the highest possible amount for tax-free payments,” says Nora Walraph, a spokesperson for the company. But this amount is no longer enough, according to Oğuz Alyanak, the lead Germany researcher for the Fairwork Foundation, a group that scores labor practices at platform companies. “With the increasing gas prices, this is now untenable,” he says. “This is way below the accumulating costs for a lot of the workers.”
“I don’t know how you square all of that analysis, and all of the pro-competitive justifications Apple has for its closed ecosystem, with the judge then saying, ‘But I’m going to force Apple to permit competitors to put up signpost in Apple’s ecosystem,’” says Paul Swanson, an antitrust attorney in Denver. “I don’t see how those two things go together.”
Epic Games CEO Tim Sweeney might agree. In a pugnacious tweet Friday, Sweeney said, “Today’s ruling isn’t a win for developers or for consumers. Epic is fighting for fair competition among in-app payment methods and app stores for a billion consumers.” The Verge reports that Epic plans to appeal the verdict. (Epic Games did not respond to a request for comment.) Fortnite won’t be back on iOS until “Epic can offer in-app payment in fair competition with Apple in-app payment, passing along the savings to consumers,” Sweeney tweeted.
Games industry and antitrust experts say the ruling is impactful, but not surprising. “It was very much an uphill battle for Epic to win the case,” says Florian Ederer, associate professor of economics at the Yale School of Management. At the same time, he says, the ruling was foreshadowed by growing international scrutiny over Apple’s anti-steering provisions. In August, South Korean regulators approved a bill forcing Apple and Google, a defendant in another Epic-led case, to allow payment systems other than their own. Days later, Japan’s Fair Trade Commission closed its investigation into Apple’s App Store, determining that Apple must let so-called reader apps—which include the likes of Netflix, Spotify, and Amazon Kindle—encourage users to sign up, and potentially make payments, through those companies’ own websites. Rogers’ ruling could have a much bigger financial impact, however, because, as her opinion notes, the vast majority of App Store payments come from gaming apps.
Within 90 days, App Store developers will be able to circumvent the 30 percent commission by adding in-app buttons or links to their own websites with their own payment systems. “Developers aren’t going to get all of that—they’re not going to entirely circumvent that 30 percent,” says Ederer. “But that’s a big win for developers.” He theorizes that any more cash surplus could act as a developer incentive to help ship more products or maintain them for longer, even if some users choose to take the easy route and go through Apple’s in-app payment system.
More payment systems can bring confusion, the stated enemy of Apple’s streamline-obsessed enterprise. “In the long term, with the absence of a vertically integrated platform, you’re going to have lots of different payment providers trying to get your business,” says Joost van Dreunen, a New York University Stern School of Business lecturer and author of One Up, a book on the global games business. “They’re all going to be fighting on the margin. There will be a growing number of transactors and payment processors trying to get a piece.” That may confuse users accustomed to “click and go” or “swipe here, done” systems. And with new payment processing systems, users may feel there is less transparency and trust in an already opaque, complicated digital market.
While Epic Games won a major on-the-ground battle, Apple may have won its moral one: Apple can claim users are not trapped in its iOS ecosystem so much as inhabiting it. “Today the Court has affirmed what we’ve known all along: the App Store is not in violation of antitrust law,” an Apple spokesperson said in a statement. “Apple faces rigorous competition in every segment in which we do business, and we believe customers and developers choose us because our products and services are the best in the world.”
The ruling is another crack in Apple’s walled garden. “It’s starting to show some wear and tear,” van Dreunen says. “It’s not the pristine, impervious organization it thought it would be.” And if today’s ruling is indeed appealed, its fight isn’t over yet.
Additional reporting by Gilad Edelman.
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First came the statements from reproductive organizations. Then came the tech companies.
The day after the US Supreme Court decided not to block a law in Texas banning most abortions after six weeks, Dallas-based Match Group, which owns Tinder, OkCupid, and Hinge, sent a memo to its employees. “The company generally does not take political stands unless it is relevant to our business,” CEO Shar Dubey wrote. “But in this instance, I personally, as a woman in Texas, could not keep silent.” The company set up a fund to cover travel expenses for employees seeking care outside of Texas. Bumble, headquartered in Austin, set up a similar fund.
Senate Bill 8, which took effect last week, enables private citizens to sue anyone “aiding and abetting” an abortion, including providers, counselors, or even rideshare drivers providing transportation to a clinic. Uber and Lyft, which are based in California, said they would cover legal costs for drivers implicated by the law. “This law is incompatible with people’s basic rights to privacy, our community guidelines, the spirit of rideshare, and our values as a company,” Lyft wrote in a statement to drivers. The company also said it would donate $1 million to Planned Parenthood.
“We are deeply concerned about how this law will impact our employees in the state,” wrote Jeremy Stoppelman, the CEO of Yelp, which has some employees in Texas. Stoppelman had previously signed a 2019 open letter calling abortion bans “bad for business,” along with the CEOs of Twitter, Slack, Postmates, and Zoom.
Such overtures have become more common in recent years, particularly among prominent technology companies. Businesses in 2021 are required to have a point of view, it seems, and have used their platforms to advocate for policies on immigration, gay rights, and climate change. Last summer, in the wake of the Black Lives Matter protests, nearly every major tech company put out a statement denouncing racism and vowing to support anti-racist work. “To be silent is to be complicit,” the official Netflix account tweeted. (Speaking out has not shielded companies from criticism of their own records, particularly on diversity and inclusion.)
One could say that corporate opinions have become the norm, at least among a certain kind of company. Companies that have remained silent on SB 8—including a number of major Texas-based employers—have been criticized for not taking a stand. Hewlett-Packard, which moved its headquarters from Silicon Valley to Houston last year, encouraged employees “to engage in the political process where they live and work and make their voices heard through advocacy and at the voting booth.” Abortion rights have become one of the most divisive issues in the United States: Six in 10 Americans say it should be legal in all or most cases, according to a recent Pew survey; nearly 4 in 10 believe the opposite.
Few major companies have come out with full-throated praise of the Texas law, which is among the most restrictive in the country. (On Thursday, the Justice Department sued Texas to stop it.) When the head of Georgia-based video game company Tripwire Interactive tweeted in support of the Supreme Court’s decision, he was criticized by thousands online, including some of his own employees. He soon stepped down from his role; the company issued a statement apologizing and committing to fostering “a more positive environment.”
For a tech company, a strong stance on social issues can be an extension of its brand, and even a recruiting tool. One LinkedIn survey, from 2018, found that the majority of people would take a pay cut to work somewhere that aligned with their values.
When federal judge James Boasberg dismissed the Federal Trade Commission’s antitrust lawsuit against Facebook in June, he gave the agency pretty specific instructions on how to salvage it. The problem, he wrote in his opinion, was that the FTC hadn’t offered even the barest evidence that Facebook is a monopoly, beyond the vague claim that it “maintained a dominant share of the US personal social networking market (in excess of 60 percent).” As Boasberg noted, that inexplicably left some basic questions unanswered, such as: 60 percent of what? Who makes up the leftover 40 percent? It was a bit like accusing a driver of speeding without even mentioning the speed limit.
To get back into court and advance to the next stage of litigation, the FTC would have to come back with something a lot more specific. That presented an interesting early assignment for Lina Khan, who was confirmed as commissioner of the agency a mere two weeks before Boasberg issued his ruling. (Facebook has sought to have Khan recused from the case on the basis of her public criticism of big tech companies before her current job, though experts see little chance of that succeeding.)
On Thursday, the FTC filed its revised complaint answering those previously unanswered questions. While it’s impossible to predict how a given judge will rule, the new material seems likely to satisfy Boasberg and keep the case alive. “To my eye, they’ve scratched Boasberg’s itch,” said Paul Swanson, an antitrust attorney in Denver. Facebook, he said, may not be able to avoid “a long slog of document productions and depositions.”
To prove that Facebook is a monopoly for legal purposes, the FTC doesn’t have to show that it’s literally the only social network. They have to show that it has “market power.” In a nutshell, having market power means you face so little competition that you can do things your customers don’t like without losing any business. It’s one of the main reasons antitrust law exists: When there isn’t enough competition, companies will stop trying to please their customers and start trying to squeeze them. Think about how frustrating it is when your internet provider raises prices and you realize no one else serves your neighborhood. That’s market power.
There are two ways to show market power: indirect evidence and direct evidence. Indirect evidence usually refers to dominant market share. (That might sound counterintuitive, but the reason it’s indirect is because being big on its own doesn’t prove a company is doing anything wrong—it just raises the strong possibility.) In its initial complaint, the FTC only offered indirect evidence, and very little of it: that feeble 60 percent statistic, which Boasberg ruled was inadequate. The revised complaint, on the other hand, goes into great detail on market share. Drawing on data from the analytics company Comscore—which, the complaint notes, Facebook itself relies on—the FTC argues that just about any way you slice it, Facebook controls a dominant chunk of the market for “personal social networking services.” According to the Comscore data, Facebook has accounted for more than 80 percent of time spent since 2011, at least 70 percent of daily active users, and at least 65 percent of monthly active users.
The new complaint also tightens up the FTC’s definition of the market itself, which is another crucial part of any monopolization case. You can’t prove a company has market power without explaining which market they have power in. According to the agency, the market for personal social networking services has three key attributes: First, a network has to be “built on a social graph that maps the connections between users and their friends, family, and other personal connections.” Second, it has to have features for users to interact with each other in a “shared social space,” like a news feed or group. Third, it has to allow users to look each other up. (Think about how you can search for someone by name on Facebook, but not in iMessage.)