In late August, a regional director for the National Labor Relations Board (NLRB) issued a decision finding that drivers for a delivery service partner (DSP) in California were jointly employed by Amazon. DSPs are separate businesses that employ drivers who deliver Amazon packages, and those drivers are not employees of Amazon.
In the regional director's view, however, Amazon should be considered an employer of DSP workers, along with the DSP itself. Under a longstanding interpretation of the National Labor Relations Act (NLRA), two businesses can jointly employ specific workers if each business exercises sufficient control over their activities.
For its part, Amazon denies that it jointly employs the DSP drivers. In the case of the specific DSP involved in the regional director’s decision, that’s doubly correct because Amazon stopped working with the company, Battle Tested Strategies (BTS), several years ago. Indeed, the severing of that relationship is what likely led to the NLRB’s interest because BTS’s workers are represented by the Teamsters union, which has long sought, unsuccessfully, to unionize Amazon’s employees, who have rejected its offerings.
In going after BTS, the union thought it had found a workaround to the law, and, in fact, after BTS recognized the union the Teamsters put out a self-congratulatory press statement claiming they had unionized Amazon. Of course, they did no such thing, but they still argued that Amazon needed to negotiate with them over BTS’s contract. This Amazon rightly refused to do since it has no obligation or right to negotiate with a union that represents another business’s employees.
The Teamsters claim that the regional director’s decision on joint employment is a major breakthrough and that Amazon must now negotiate with them. The union was even happier when a second regional director, this time in Atlanta, decided that Amazon is a joint employer with a DSP called MJP, LLC.
However, the arguments by the regional directors are little more than one person’s opinion. Any formal complaint issued pursuant to these decisions will be appealed, and ultimately the Board itself will have to issue a decision. If history is any guide the Board will do whatever the union wants, but any decision it renders will be appealed to federal court. In other words, the Teamsters are a bit out over their skis claiming that Amazon must negotiate with them on behalf of employees who don’t work for it.
Joint employment has been a fraught topic for the NLRB in recent years, and a overly broad rule issued by the Board was overturned in court in March 2024. Whether the agency’s attempt to revive the concept by going after Amazon will succeed is an open question. Hopefully the courts will put a stop to the Teamsters' end run.
