OA584: Amazon Workers Unionize!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 584. I'm Thomas. That's Andrew. How you doing?

0:01:22 Andrew: Well, I was fantastic, and then we had breaking news 10 minutes before the show that elevated me into the realm of super fantastic.

0:01:29 Thomas: Really sad breaking news. Tragic. No, it's good breaking news, everybody. Psych. Gotcha with that one. Yeah, good news. What

0:01:38 Andrew: As we have been saying all along, Judge Ketanji Brown-Jackson, confirmed by the Senate 53-47, which is uh that's a hundred to zero by ordinary standards, right. Like that is that is legitimately bipartisan uh and bringing on Mitt Romney as a vote was a testament to how well her testimony went. Right, I I legitimately think that uh Romney could have gone either way and that the attacks on her were just so embarrassingly facile and stupid, and you know, you saw, I, the Republicans lining up to give their bizarre pretextual reasons for voting against somebody that they already voted against, right, when her nomination came

0:01:49 Thomas: Yeah, yeah, yeah. Yeah. It was hilarious. Yeah,

0:02:20 Andrew: Up to the DC Circuit

0:02:20 Thomas: They they gave that they were stuck in the weirdest painted in the weirdest corner. I mean, it was truly remarkable to see the one guy who was like, this is a historic and truly monumental appointment. It's amazing for our country. I voted no, but it's going to be great. I'm right there celebrating with you after my no vote. It's like I'm barely exaggerating. It's it's so weird that they are painted into that corner of having to still do that because of, how awful Republicans are now and how much you have to toe the line and fight every battle, even if it doesn't even matter.

Again, the third vote on a court that has lost a historic nomination, a flawless candidate still can't just they still can't just throw us a bone or and by the way, what's funny is strategically, it would have been way better for them. I to think if McConnell maybe had his way, I don't know, hard to say, but if they just voted for and supported her and said, yeah, it's only the Democrats that all make the fuss about the candidates and yell about liking their beer and stuff. We're the party of normal, ordinary process. They could have done that. It would have been strategically way better. But they are so dedicated to total war that they couldn't even do that.

0:02:21 Andrew: Yeah yeah, no. You you are you are not right.

0:02:56 Andrew: Yeah yes yeah and they are so beholden to such extreme constituencies that you couldn't even say, right, like you would have to have some kind of, you behind the scenes agreement of like, look, we don't mean anything we're about about to say right here. I, it, yeah. So, but in any event, uh, welcome aboard, uh, Justice Jackson, and we look forward to, you several decades of reading your dissents.

0:03:35 Thomas: Yeah. Oh, can't wait. Truly fantastic news. What else do we have on the announcement front? All

0:03:58 Andrew: So uh, scrambled the whiteboard a little bit about, uh, an hour before we were scheduled to record, we received the New York Attorney General's office motion to hold, uh, Donald Trump and his criminal crime syndicate of a family in contempt. Those are the civil proceedings with respect to the Trump Organization and valuation of Trump's properties. We're going to break all that down on Tuesday show.

0:04:22 Thomas: Looking forward to that. And a fun announcement as well. What a nice, pleasant start to an episode. We will be at American Atheists, the convention in Atlanta, starting on Thursday. Next Thursday, the 14th. Can't wait. I am so excited. This is certainly my first event in quite a while because of all the nonsense. Sense. What about, yeah, I think you too, right? I mean, we haven't really gotten to do anything major and public for and a while.

0:04:42 Andrew: Yeah. Yeah. No, this is this is going to be great. This is always a really, really fun convention. Thursday night, I am hosting the AACON's Pub Trivia event. The Puzzle and a Thunderstorm guys are going to be there. You're going to have a lot of fun. So that is convention.atheists.org if you have not yet signed up. It's at the Renaissance Atlanta Waverly Hotel and Convention Center, and Thomas and I are going to be here all weekend to, you know, say hi and hang out

0:05:16 Thomas: I'll I'll tell you how excited I was to make that because I didn't know for a while. I don't know why they were so late with the news about you guys hosting that, I didn't know. And so I had a nice comfortable Thursday at noon flight, you know, was going to get out there around 7, 8. I was like, yeah that'll be fine. Maybe 7, 8, 9, you know, somewhere around then comfortable daytime flight. And then I found out you guys were hosting that game night. And I said, you know what? I have to do it. I have to do It. I booked a really horrible, like 5 a.m. flight just to, I changed my flight time just because I'm so excited to see you guys and do that. So, uh, come hang out with us. Come, play come along with trivia game night going to be so much fun. We hope to see there.

0:05:49 Andrew: Aww. Yep.

0:05:56 Clip: I don't like them putting chemicals in the water, that turn the friggin' frogs gay, Hey.

0:06:01 Thomas: Alex Jones update. Uh, that was a lot of fun covering that story. What is the, the news?

0:06:04 Andrew: Yeah. The news is the system works, right? Alex Jones has been saying all along yeah, no, it really is.

0:06:09 Thomas: Uh, what? What? You have to clarify that. What system and in what?

0:06:15 Andrew: I I, the system of imposing an increasingly serious, uh, number of fines on Alex Jones until he got his ass to Connecticut to sit for his depositions. And all along Alex Jones has been saying, yeah, I've got, I've gotten the appeal to the Connecticut Supreme Court and, you know, I'm not going to show up before April 11th. Well, guess what, he showed up on April 5th, stayed through to April 6th, stayed longer than the time that was required by the court. The only thing I cannot find, I have sent out our feelers, I have posted this on social media, I've ask the guys over at Knowledge Fight if anybody knows if he wore a mask. Which oh man and I think it, I think it could be a big deal. So, I, I haven't seen that yet, obviously. You we haven't seeing that.

0:06:56 Thomas: Oh, yeah, that was a big deal, you thought.

0:07:06 Andrew: The the deposition transcripts are not yet made oh yeah, the depot took place. Um, so you will find out, if, if they require, because the the plaintiff's law firm requires social distancing and masking, so the question is, you know, did they just relax the rule, you know, they say fine, we got him to show up in Connecticut, like, we're we're not going to pick a fight about this, or did they pick a fight about it, inquiring minds want to know, and buy, that

0:07:06 Thomas: Well, but we know it happened, right? So, right.

0:07:31 Thomas: Yeah. Who gave in? I mean, did they give in or did he say like, oh, man, this escalating series of contempt charges is really, it's going to add up to more atoms than are in the universe if it keeps doubling every every day. So

0:07:32 Andrew: Yeah it is Montezuma's chessboard. That is definitely the case. As a result, uh, Alex Jones tendered $75,000 to the court for the two days that he was in contempt, that is April the 1st and April the 4th, then and has now moved to purge that contempt. He's asked for all of the money back. I will point out that the court, while it has ruled on several pending motions that that were filed after that date, including one. And again, these are these are are minor, right, it was a a motion by the plaintiffs to move the deposition deadline, right, in in connection with, you know, sort of all of these shenanigans, but the court has not ruled on the motion to cure his contempt. So in other words, if the court was just planning to to rubber stamp and give back all of the money once Alex Jones sat, they could have done that by now, right? That hasn't happened. So we may see, you know, the court may hang on to some of that money. I don't know.

0:07:45 Thomas: Yeah.

0:08:38 Thomas: Again,

0:08:38 Andrew: I sure hope they do. There is one little wrinkle, but I want you to know that this is okay, right? So folks may, may have downloaded and be looking at this document. Alex Jones's lawyers filed a supplemental notice of compliance that says, we want to apprise the court of a development that does not affect Mr. Jones's compliance with its order, but does have some bearing on the court's consideration of Mr. Jones's compliance. Okay, so that sounds interesting. Uh, on April 6th, that was, uh, yesterday, the second day, the plaintiffs began their second full day of Mr. Jones's deposition at 9:30 a.m. at their counsel's office. Plaintiffs concluded their portion of the deposition at approximately 4:58 p.m., so full day. But counsel for defendants Genesis Communications has questions for Mr. Jones.

0:08:39 Thomas: You

0:09:24 Andrew: Given the lateness of the hour, counsel for the parties have conferred and agreed to select a date to be determined in the week of April 11th so Genesis Communications can complete its participation in Mr. Joan's depot, as it has a right to do. By agreement of the parties, that completion will be done remotely, right, over over Skype. Genesis Communications is a co-defendant, right? It's one of the networks that airs the Alex Jones Show. So yes, all the parties, including co-defendants, have a right to ask questions of Alex Jones at his deposition, including his own lawyers have the right to asking questions if they want. Generally speaking, strategically, that's not very smart unless there is something you absolutely have to clear up because your client has given a terrible answer and you, you need to fix that the day of, right? And I've had that happen before, right, where, you know, where somebody says it's a true Perry Mason moment. Yeah, um.

0:09:43 Thomas: Hmm.

0:10:15 Thomas: I did it. I mean, uh, when yeah. Can you go undo that? Do you have to come up with some elaborate reason? When I said I did It, I was referring to,

0:10:27 Andrew: So true, little sidebar of a story. I, one of the things that you can do is after you, after after a party sits for a deposition, they have the right to correct the transcript, right? So the court reporter is there, they've got those corded keyboards, they're typing 8,000 miles an hour, 8,000 words per minute, I guess I should be saying. And there are, even after corrections, there are errors that come up. Errors in spelling, errors in hearing. And so you have a right as the the witness to go through and correct the transcript to reflect, you know, oh hey, I spell Philip with two L's, or you know, whatever. I

0:11:04 Thomas: Spelled, I didn't do it wrong. I left off an N and apostrophe and a T.

0:11:06 Andrew: I had I had case in which opposing counsel had their witness attempt to insert the word "not" into their into their transcript correction, and yeah, we had to go, uh, fight about it. They were like, no, no, it's very clear from the context of not. And I was, was like, um, it's very clear from the next 11 questions that I asked the witness that that was an admission, that was a really important admission, and we're not going to allow them to go back on that right now. So, and we we did win that

0:11:35 Thomas: Like we were doing a Wayne's world bit. We just, we're going to say not at the end, you know, and just forgot.

0:11:38 Andrew: Not yeah oh I have deposed a witness who was basically the equivalent of, uh, giving the Wayne's World "not" at the end, but no. So look, um, the point on all of this is the Genesis Communications questions are going to be largely friendly. Uh, they will, you, to the extent that they're adversarial, it will be, "We at Genesis Communications have no control over the content of Alex Jones," right? You know, and he'll say, yeah, I gotta tell you what to do. Right. Something like that.

0:12:06 Thomas: Yeah.

0:12:06 Andrew: And so, yeah.

0:12:06 Thomas: Which is a believable claim. Like nobody has control. I don't even think Alex Jones has control over Alex Jones.

0:12:08 Andrew: Yeah. I will tell you, we talked about the the knowledge fight depots and since then they released the Owen Schroyer deposition and hearing. And so, Owen Schroyer. We had the knowledge flight guys on to explain who the hell he was. He's he's he's the triple-A Alex Jones. Right. Yeah. Yeah. And man, is there a drop off from the major league talent to Owen Schroyer. Owen Schroyer describing the process by which he reads stories on the air was sort of truly amazing. It was like, yeah, well, you know, Alex Jones gives me a story and I read it. Do you do any independent? No. Do you have any control over those stories?

0:12:32 Thomas: Yeah, well, but is he saying that for convenience

0:12:50 Andrew: Stories, it doesn't really help, right? Because saying all all of the discretion comes from Alex Jones is probably not helpful to their case, right, so, Yeah, it really is. So, yeah, he got, And again, one of these questions that sounds more hilarious in the deposition than it has value in the case. But attorney was like, do you know what a puppet is, Mr. You know, Mr.. Yeah. So you're basically a puppet for Alex Jones. And he was like. Well, I don't know. You know. You define puppet that way. I guess I'm puppet four, you know. So it was kind of funny. But less legally significant and more just, you You know, you realize that these right wing InfoWars type places are set up, institutionally set up to be nothing more than propaganda outfits that are mimicking news organizations. Right. The evidence was Alex Jones would post a story on Info Wars then, you know, and make up the headline, then print off the headline.

0:12:51 Thomas: Of trying to get out of blame?

0:13:02 Thomas: Oh, really? Okay.

0:13:48 Andrew: Give it to Owen Schroyer, and Owen Schroyer would say "news sources are saying," and then read the headline, and then Alex Jones would go on his radio show and say, "See, like..." Just, As Owen Schroyer said, like, "We lots of people are talking about the, uh, you know, Illuminati lizards that live in the basement," and literally it was just a self-contained ecosystem.

0:13:57 Thomas: Yeah sources.

0:14:09 Thomas: Boy, our show would be so much easier if we had that lack of ethics. We just be like sources say that Trump Trump is awaiting trial right now. He's getting, yeah, no.

0:14:14 Andrew: So, Yeah. Um, not, not quite us, but, uh, so there you go. Everything you need to know about Alex Jones. And hopefully we won't have to hear any more about this for a while.

0:14:28 Clip: Down the law, down the law.

0:14:32 Thomas: And now time for our main story, a success in terms of unionizing at Amazon, something that I certainly didn't see coming. I didn't expect that after the last one we covered. Yeah, Amazon did some shenanigans. Go back and listen to our episodes on that. I'm sure Andrew will have the number ready. But this seems surprising and a real victory. Is this good news? Do we get to be happy?

0:14:54 Andrew: Is very good news, you get to be happy. We're going to tell the story. And in fact, the do-over election at Amazon's, uh, Bessemer, Alabama facility is also question mark news, right? So let's, let's first talk about the, uh, Bessemer story, which, indeed indeed, we covered on OA-465 and again on OA 550. The first time around, right? They lost 738 to 1,798. But as we told you a couple of months ago, the National Labor Relations Board ordered a new election because of all of the violations of how you have to conduct an actual election that occurred, including, you know, putting up the tent in your parking lot under surveillance with the big Amazon logo on the top, like, hey, you know, total unbiased ballots here?

0:15:45 Andrew: In a way that looked that and felt coercive. So those results are in and those results are undecided right now. So here's Here's the result of the Bessemer reelection. That is is, 137 more votes came in favor and 805 fewer against. Okay, when you add that all up, that is 993 against, 875 in favor. So that still sounds like a loss, except that there are 416 challenged ballots and 59 more that both sides agree are invalid ballots. Right, so the, the total universe is about 2,500 people. 416 of those ballots are challenged either by Amazon or by the NLRB. They have not been opened. They have not been counted.

0:15:53 Thomas: Hmm. Hmm.

0:16:35 Thomas: Wait, not even

0:16:36 Andrew: Yeah.

0:16:36 Thomas: Opened? Huh.

0:16:37 Andrew: So presumably it is, you you know, failure to, you know, sign the outside properly, that sort of thing. Yep. So ballots will be scheduled to be opened in the next couple of weeks. The parties are filing objections to how this election was conducted. And we anticipate that the union at issue there, the retail, wholesale and department store union, is going to continue to file the same kinds of objections as last time. And again, Again, cannot be overemphasized how big of a swing that that there was from election one to election two. If we had more yeses and way fewer no's. Right. So things are still up in the air in in Bessemer.

0:17:23 Andrew: But if that, you know, if that kind of seems like half a loss, you know, I don't, I don't know how much I love undecided as a victory. Here is an absolute victory. That is at the JFK facility in Staten Island, New York. The total vote was 2,654 in favor of joining the Amazon Labor Union, and 2,131 opposed.

0:17:58 Andrew: That, by the way, is over 60% participation. You might be asking, OK, I've heard of lots of other unions, what's the Amazon Labor Union? And the answer is, it's an independent union that was created by the employees and by ex-employees for this election. So the press is covering the story, they've really focused on one person, Christian Smalls, and he did play an integral role. But by, but by just focusing on him, they've missed a part of the story that is going to become a part of the major argument being raised by Amazon to challenge this vote, so in connection with any appeal that Amazon might file. And again, the timing is too early for that. So want I to tell you the story of these Amazon workers and how they came to organize a completely new union from the ground up.

0:18:51 Andrew: During the initial outbreak, and I mean in March of 2020, was when Amazon was entitled, uh, to keep the JFK8 facility open, open as an essential business. This warehouse is 840,000 square feet. So it's huge, it's right, in Staten Island, New York. There are usually 3,500 workers there at any given time. During peak seasons, they cram full of 5,000 people. That, right, is Amazon Prime Day in July, and obviously, you know, November and December, right,

0:19:24 Thomas: Right. They should get rid of Amazon Prime Day because every day now seems to be that. Like, what do they do extra on that day? They're always working so hard and delivering stuff so fast.

0:19:35 Andrew: Yeah. And we're going to talk about, as you might imagine, some of the Amazon policies that were then in existence really interacted not well with COVID. And there were additional allegations of particularly egregious behavior in connection with COVID-19. So full time workers work four days a week, 10 and a half or 10 and three quarter hour shifts, depending on lunch, overtime, that sort of thing. During peak seasons, they're expected to work M.E.T. mandatory extra time. So that is an additional 10 hour shift each week. So imagine, you know, five, half, 10 three quarter our days. Days. And Amazon increased the amount of mandatory extra time that it required from its employees during the pandemic.

0:19:46 Thomas: Oh, yeah.

0:20:24 Thomas: Andrew, what is mandatory extra time? I feel like I've had something like that in past jobs, but it's been a while. It sounds like something that's a product of our capitalist hellscape here in the United States. Isn't it a bit of a contradiction to say it's extra time you're working and it's mandatory or

0:20:39 Andrew: It should be, you look at our wage and hour laws, it is a potential violation of the wage and hour laws to require somebody to work in excess of 40 hours per week. Now, there are lots of ways in which you can sort of wrangle around this. And the wage an hour laws have struggled to keep up with those sorts of shenanigans. And so, for example, something that we did win back when we were capable of passing legislation is an employer would say, OK, well, we're going to work you 80 hours during a two week period, but that is 65 hours in week one and 15 hours in Week two.

And therefore, we don't have to pay any overtime. And the federal wage and hour law says, no, you have to pay overtime on those hourly wages in week. So I have not seen and I presume that Amazon employees who are working at JFK are being compensated, are being paid overtime for the mandatory extra time. So I have no knowledge that they're not. And those are relatively easy suits to bring if engaging in wholesale short shrifting of its employees of their overtime. Time. I don't think that's the case because one of Amazon's arguments has been in attempting to ward off unionization has been, well, look, we raised our minimum to pay $15

0:21:16 Thomas: Oh, yeah. Yeah. Yeah,

0:22:11 Andrew: An hour to all of our employees. Because Amazon is super profitable now And it makes sense to say we're going to throw more money at it, that workers have are concerns, like the ones that I'm about the detail here, that can't be solved by, you know, paying you time and a half by by paying you extra money. Yep.

0:22:28 Thomas: Well, and even if, sure, you're paying overtime, still, Still, you're making people work overtime. I mean, I guess that's pretty common in restaurants and, you know, in a lot of places. But so I guess that's how they do it. As long as they're paying the overtime in this country, we're allowed to say, yes, you have to work it.

0:22:43 Andrew: So Again, theoretically, you can run afoul of the of the hours. There are ways to manipulate scheduling, and Amazon is very, very good. We will talk about some of the evidence that the HR department, one of the first things they ask is, oh yeah, go take a look at the calendar and take a look at, you ex-employees hours. So, you yes, they are good at manipulating the way in which those hours come in. But as far as I can tell, I want to be fair to Amazon, they, I believe they pay overtime for mandatory overtime. And again, mandatory is in the context of you're an employee at will, right? So, so, can't, you can't be fired for failure to show up for the mandatory time, Yeah, but you can be fired for any reason.

So, you know, that's Always fun? And we're going to talk about the intersection of that can be terminated at will with what happened in the case of some of these employees. So that's the background conditions. Individual Amazon employees at the facility, including Christian Smalls, began raising their concerns on March 24th of 2020. That is three weeks into the pandemic. This is literally at one of the very earliest times. This was at a time in which I can recall getting groceries delivered from the grocery store and spraying them down with disinfectant on the porch because we just didn't know anything about coronavirus back then. And they raised a number of issues about Amazon.

0:23:21 Thomas: Yeah. Hmm.

0:24:16 Andrew: So, number one, they accused Amazon of withholding information and best practices from their employees. So specifically, workers were concerned that management was withholding information about positive cases at the facility, refusing to shut down the facility for a deep sanitization, right, as had been done in other Amazon facilities with positive cases, failing to implement and enforce policies to allow for adequate social distancing and failing to improve access to leave for workers who were sick, who had family members who were were sick or who believe they'd been exposed to someone with COVID-19, right? So the first kind of bucket of claims are, you're not telling us when people get COVID and you're making it hard for us to schedule leave when we believe we've been exposed to somebody with COVID.

0:25:02 Andrew: And, you know, you've got this gigantic facility, but, you've you put out some wet wipes, right, we need to shut this thing down and sanitize. Those, okay, were the first bucket of claims. Second, not surprising, uh, that they were discouraging people from taking sick and quarantine leave and, although paying, paying slowly, right, on a slower than usual scale if your leave was quarantine leave, which was again required by the state of New York at this time. You know, we're, we're three weeks into the pandemic. We know nothing at this point. The right third category are, uh, categories involving UPT, which is, um, the automatic unpaid time off, not not paid leave, unpaid leave that you get as a full-time employee. So you accrue this unpaid time off as you continue to work for Amazon, 20 hours per quarter. Then the allegations are that Amazon, Amazon deducts full hour of UPT every time a worker is more than five minutes late to Work. Yeah. So you're six minutes late. You lose an hour.

0:25:32 Thomas: Yeah. God. I would never be paid. I wouldn't. I wouldn'T get any money. Yeah.

0:26:07 Andrew: Our Q&A's would be Thomas has lost another hour. And then once a worker loses all of her accrued UPT, he or she can be automatically fired for arriving late to work even by one minute. So this seems like a really bad, obnoxious, terrible policy in general. It's consistent with a lot of what we've learned about Amazon. I want you to think about how this was impacted in the first month of pandemic during 2020, Because right? Many Amazon workers, this is out in Staten Island, right? Huge facility. So as the the complaint alleged, they take public transit to get to the facility. But a lot of the buses were shut down. And the buses that weren't shut down, right, like, you know, now you have workers cramming onto the buses or, you Know, saying, Well, I guess I'll, I'll wait and catch the next one, right?

0:27:02 Andrew: Like, it was just demonstrable that there was a tremendous strain on public transportation which made workers more likely to be late, right? The the S90 express bus, which went from the Saint George terminal directly to the Amazon facility, that route was suspended. A similar bus that traveled that route had the number of routes reduced, right? Why? Because you had fewer bus drivers at the time, and right, because other people also took the buses, it just, it strained the the public transportation system, made Amazon workers more likely to be late, and made those workers then more likely to use their UPT. I did not know about this, and man, this is creepy, maintains a quasi health care facility, dispensary, called AmCare.

At its services, you could see how this could start as a well-meaning idea, right, like you've got thousands of employees. Might be nice to have a little place that can, you dispense aspirins or, you know, Tylenol or something like that. Weird if it starts acting as a health advisor and as if it is a medical facility. So it is an in-house clinic. I guess it would also, you know, band-aids, you get hurt, whatever. AmCare, this is from the allegations from the underlying NLRB complaint, purports to to provide medical care to Amazon workers experiencing injury or illness. AmCare has come under considerable scrutiny for purporting to provide medical care without being licensed to do so.

As recently as 2019, Amazon received a hazard letter from OSHA regarding a fulfillment center's AmCare facility, which purported to provide medical care but did not have sufficient oversight or supervision from a licensed physician. And the allegations in this bucket, no surprise, are that when workers went to AmCare and said, "Uh, think I might have been exposed to COVID," that they uniformly got things like, "I wouldn't worry too much about that." Yeah.

0:28:12 Thomas: Hmm. Oh, wow.

0:28:58 Andrew: Uh, at least on, at least one occasion the complaint says worker attempted to continue working after having visited AmCare and complaining of symptoms. So in other words, they're like, "Hey, why don't you get back to work?" Fifth bucket are uh complaints about uh Amazon's contract uh tracing program, right? And that basically their attitude was like, um, yeah, as they were trying to trace your contacts, they're like, "You know, this is going to take some time for us to figure out. So why not continue to come to work while we figure it out?

0:29:25 Thomas: Yeah. Yeah. Meantime, just work and expose everybody. It's fine." Oh, Till

0:29:28 Andrew: Yeah. Yeah. So that's the fifth bucket. The sixth bucket of complaints, and I promise this is the last bucket, but I think it's important to understand sort of how bad these conditions were. Were basic, terrible policies at Amazon that then were magnified during pandemic. So I didn't know this. Amazon uses real time tracking of employee activity on scanner devices that workers use to scan items, bins and packages in order to track whether workers at the facility are on task or off task for every minute of work. During every minute of each shift, including the two paid rest breaks, Amazon tracks down to the minute whether the worker is actively engaged in work based on whether they perform a task in that minute and aggregates a total time off task, TOT, for each worker every day. If a worker has more than 30 total minutes of TOT in a shift, other than their paid break time, they receive a written warning.

0:30:28 Thomas: God. This is hell. I. Oh.

0:30:29 Andrew: Let's explain that for a second. That means if if 60 seconds go by and I do not use my scanner to process an item of inventory, then that scanner reports, "Hey, I went 60 seconds without doing something. This employee is goofing off." And if that happens 30 times in a shift that lasts almost 11 hours, I get a written warning. It's 60 total minutes, I get a final written warning. If it is 120, then I am automatically terminated that day. OK, although supervisors are authorized to recode TOT for certain activities, like visiting the on staff health clinic, so that it does not count against the worker, supervisors cannot waive TOT for bathroom breaks, including now you see the interaction with COVID trips to the bathroom for handwashing purposes.

0:31:24 Andrew: So, Yeah, this is an 840,000 square foot facility. The evidence is that for many workers the bathroom is a seven minute walk away from your station. So yeah, process that one for a minute. I walk seven minutes, I wash my hands for the required two minutes of hand washing, right, that's what CDC says, I walk 7 minutes back, that is 16 TOT, right, then and there, every time I want to wash my hand. And yet you get the written warning at 30 TOT, which is, One right, if you've washed your hands twice in any given day, then you're going to trigger that disciplinary process. Oh, and on top of it, it's not like, I can't decide if this would be better or worse, you don't have a little like counter in front of you that tells you how many TOT you've accrued over the course of the day, right? So everybody is freaked out about this, right?

0:31:25 Thomas: My god. Wow. Oh.

0:32:20 Thomas: Man.

0:32:20 Andrew: You learn out You learn about it when you get the letter, right? So because they keep you in the dark, your incentive is to quote, work at a frenzied pace, end of quote. It

0:32:21 Thomas: Yeah. I know this comparison gets overused, but this is like 1984, right? I mean look, I had some bad jobs, but I'm just so thankful, I mean, I never had to do anything that bad, and the heart goes out to people stuck in these capitalist, capitalist hellscape jobs. Oh my God.

0:32:35 Andrew: This sounds horrible.

0:32:46 Andrew: And that's why I'm going through, because when you you talk about unionization, right? This is the impetus for the unionization drive. We're going to get there when we wrap up the story. But I think it's important to understand the background conditions. All of that was pre-COVID. And then during COVID, yeah, Amazon sometimes provided employees with access to tissues and disinfectant, but did not, of course, provide those workers with extra time to clean their work surfaces. And again, you scrub down your work surface for five minutes. That's five TOT, right?

0:33:22 Thomas: Wow.

0:33:22 Andrew: That is one sixth of your daily allotment. It's just, it's horrible.

0:33:27 Thomas: I'm pretty sure the meat plant from the jungle is like, well, we'd let our employees go to the bathroom. What the hell? What are you talking about?

0:33:31 Andrew: We throw in a couple of rats, but still. Yeah, right.

0:33:35 Thomas: Yeah. Sure. A guy fell in the meat grinder, but like we let you go pee. Episode Is brought to You by X Chair from the first moment I sat in my ex chair, which is the chair I'm sitting in right now. My body immediately said, ah, you know that, that sound, that's a nice sitting sound. You know that sound. So this is what a real office chair is supposed to feel like. Studio I for a thousand million hours a day until I got my X chair. Can your current chair give you a massage while you're working? Well, my X-chair can. Can Your Current Office Chair Heat Up or Cool Down? My X-Chair can. It's all in the LMAX Massage and Temperature Regulation exclusively designed and made for X- Chair. And once you feel the customized support of X-Share's patented Dynamic Variable Lumbar, or DVL, you will never be happy in another chair again. High performance, quality engineering, pioneering extreme comfort.

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0:35:13 Andrew: So this enters a number of employees, including Christian Smalls, who on March 24th, 2020, began talking to people at Amazon HR about the conditions at the Amazon JFK facility. Facility. On March 24th, he learned from a manager that somebody who had tested positive. He then left early that day because he was concerned about getting COVID and, quote, was angry that Amazon was keeping information from workers and refusing to take affirmative steps to protect us. So on March 26th and 27th, and I know I'm getting through specific dates, this is really, really important to remember that that these are the dates because it will expose the pretextual nature of Amazon's response when we get to the specific documents.

So March 26th and 27th, Christian Smalls, Derek Palmer and others went to Amazon Human Resources and basically, you tried to light a fire and said, look, we want you to shut down the facility for a deep cleaning, just like Amazon had had done in another facility in Queens. Right. And we want better practices to help keep us safe. So that day, March 26th, Smalls got a text message from a friend said she had tested positive for COVID-19, a friend at the facility, a co-worker, and she was showing symptoms. Systems, so again, he left, uh, he told Derrick Palmer, with whom he carpooled to work, and said, uh, "Hey, man, you know, this

0:35:59 Thomas: Hmm.

0:36:45 Andrew: Person tested positive for COVID, you should get tested for COVID." Uh, HR managers said, uh, that Amazon would be reviewing the footage because, by the way, you're, you're under constant camera surveillance too, I didn't add that, part would be viewing the footage to determine if their proximity to this positive person merited applying their quarantine policy, and so did not automatically put either of the employees on quarantine on March 27th. On March 28th, the senior operations manager, a guy named Zachary Mark, his name might come up again, placed Christian Smalls on quarantine due to his contact with a particular supervisor, did not put Palmer, even though the supervisor was Derek Palmer's supervisor, did not put Derrick Palmer or anybody else under quarantine. The reply back was just Smalls. Keep in mind, Smalls was also the ringleader of the initial protests too.

0:36:57 Thomas: Yeah.

0:37:43 Andrew: So he goes out on quarantine on the 28th. Then on March 30th, Smalls and a number of other individuals, the day off, are, right, in the parking lot outside the facility and staged a protest about Amazon's failure to implement adequate health and safety precautions to protect the workers in the warehouse. They never clocked in. They never entered the facility. The protest was safe and peaceful. And now, if you want to talk about bad documents, now is a great time to look through Amazon's internal messaging system, which is called Chime and this is the, like, text messages that Amazon workers use to communicate with each other and these are communications by and between the HR manager, a woman named Christine Hernandez, and one of her associates, uh, Puya Desai. Okay, so it begins, again, remember the timeline, it begins on March 26th with a list of everybody that has raised complaints to HR about COVID, right?

It includes Smalls, it includes Palmer, it includes a name you need to remember named Gerald Bryson, uh, and Puja says, "Are we still tracking the list of protest associates?" Her supervisor says, "I don't have that list." Then there's a redacted block, which is redacted because it's seeking legal advice, and the legal advice thought is super obvious from the context because the next substantive question from Puja is on March 27th, which says, "Are they sure?" And by, and, and my, my emphasis on sure is because that's spelled with eight E's.

0:39:24 Andrew: OK, "are we sure that's not going to be perceived and considered retaliation?" So obviously, the legal advice thought was, "Hey, we'd like to can this Christian Smalls guy, what do you think about that?" And then obviously they got back advice from legal, it's like, you know, totally fine to to fire him. And Pouya is like, "Are you sure about that?" Really smells like this is going to be considered retaliation. That that note is sent on March 27th.

Christian Hernandez, her supervisor, replies, "I think it will be perceived as such." And then about an hour later, she says, "Hey, look into the, into his time." And Pouya says, "Why? What are we looking for?" Christine says, "He stated he did not get paid in a month." And then Puya says, "Yeah, we show a steady decline in hours from March 1 until now, week 1, 40 hours, week 2, about 30, week 320 then this week he only worked about four and a half and last week he worked a little under 10 hours." Okay, so then there's a "maybe we can, maybe there's something up with his time." Two days later, March 29th, there's call, they exchange over this messaging service the phone number and eight eight minutes after that, so presumably phone call takes place, right?

They've said, "Hey, about to jump on the call." "Yeah, it's X number." And then eight minutes efter that, there is a message from the manager of human resources to her deputy, from Christine to Puya, that says, "I don't even know what to say, like, I don't want to be in their shoes making these decisions." There's a message back from Puya to Christine, "Christine is crazy, I think if we put in an override in advance and no alarm sounds, I don't

0:41:00 Andrew: Know how that works, it would look bad." "Then we cannot approach Smalls with a term," which I think means terminate, "mentality. If his badge is suspended, he can't come in the building." Christine replies, "Yeah, that's still not a good look." The next day is of course the day of the protest and the day that Smalls is fired. And Pouya says, "Wait, did someone talk to Smalls saying, hey, parking lot counts as Amazon property?" And then there's some more back and forth. Then Pouya concludes, and this is what makes this the document you really don't want to have introduced in an NLRB grievance complaint against you. Pouya writes back to her boss and says, "Christine, I know I don't need to tell you, but come on."

And then she has five bullet points. One, not being in the building equals suspending badge, which to most would mean not past the Linnells. I had to look this up. Linnells, L-I-N-N-E-L-L-S, is what Amazon employees call their security gates, right? So That first point is, yeah, he was in the parking lot. He didn't come into the building. He didn't check in his badge. Point two, this is really important, they were social distancing as required, right, referring to the rally outside. Three, it was a peaceful protest, his right to organize is protected. Four, there were no unsolicited group gatherings, they were all off the clock waiting to speak to the GM as per open door policy and waited patiently. Five, this is going to be perceived as retaliation

0:41:15 Thomas: Yeah, what? What? Oh. Okay.

0:42:27 Andrew: They want it to happen now and are coming up with a backup plan in case they come back for the next break. So that ends that exchange. So this

0:42:36 Thomas: And remind me, wait, is this legal, is this, some, this is some HR?

0:42:39 Andrew: Is HR Yeah, yeah.

0:42:40 Thomas: Okay, gotcha.

0:42:41 Andrew: HR going back and forth, going, "Yeah, um," they meaning, you know, higher ups at Amazon, want it to happen now and are coming up with a backup plan in case he's gonna come out and try this stunt again. Then there is a draft of his termination agreement, which Christine circulates and notes, Quote, "Read verbatim, do not deviate, do not allow time for questions," and points out that the agreement has been vetted by Ops, Legal, HR, ER, and PR.

0:43:06 Thomas: I imagine that doesn't normally happen with just your run-of-the-mill, everyday firing, yeah, like Jeff Bezos signed it, then the bottom, yeah.

0:43:11 Andrew: Yeah, no. Five different departments signed off on this. Yeah, yeah. And the termination letter says that we're firing Christian Smalls, one, because he violated the quarantine that was imposed on March 28th, right, remember I told you put a pin in that, and second, that he violated the social distancing policy, well, the previous text message indicates that they were well aware that he didn't violate the social distancing policy. And the problem with saying "we are firing you for showing up in the parking lot violating the quarantine order" is that that quarantine order was issued on March 28th and they were talking about canning Christian Smalls, were talking about canning Christian Smalls as early as March 26th, right? That's why I had you put the pin in it, they started talking "this smells like retaliation" on March 26, so absolutely 100% no question that this is pretextual. And then meetings, they attempted to carry on without. So Christian Smalls was indeed fired.

0:43:17 Thomas: Wow.

0:44:15 Thomas: These union-busting assholes.

0:44:17 Andrew: No, vent away. One of the people who was present at the March 30th meeting was a guy named Gerald Bryson, who kind of took up part of the mantle and joined the protest in his day off. He He was hired two weeks later at a subsequent parking lot protest. And just like, well, I should tell you, this makes It a muddier record. Okay, because what Bryson says was that he had somebody who came out during the protest, another employee, and they started yelling at each other. The statement that Bryson submitted to the NLRB was that Bryson is black. This woman was white. And Bryson said that the woman repeatedly told him, get the F out of here, and then told him in racially charged language. Now, that usually only means one thing, right? To go back to where you came from, followed by go back back to the Bronx. And then Bryson admits that he called her a gendered slur, B word, before walking away. Amazon says, and I'm going to read all of this, that Bryson called the female co-worker a gutter bee, ignorant and stupid,

0:44:17 Thomas: Sorry, hmm.

0:44:42 Thomas: So?

0:45:35 Andrew: A crackhead ass, crack ho, queen of the swamp, and accused her of being high and on fentanyl. Okay, yeah.

0:45:42 Thomas: Wait, what caused this spat?

0:45:44 Andrew: So Bryson is at the protest in the parking lot, uh, against the Amazon policies with respect to COVID, and this employee comes out and starts screaming at him. So argument is he responded with some rather intemperate language, including gendered insults? And again, uh, I'm gonna talk about the law of that in a minute, and then Amazon says, well, we fired you because you shouted sexual obscenities at a female co-worker in in a shared workspace, and we care deeply, you know, about, uh, preserving thing.

0:46:02 Thomas: Yeah. Yeah. Yeah. We fired you because Of all the pretext that you said, I, the things you said. Sorry.

0:46:19 Andrew: Yeah. Yeah. Yeah, as a result, Smalls, Palmer, Bryson spent their time organizing that Amazon Labor Union that won the vote. And Bryson, by the way, is, as I've said, the sole basis for Amazon's argument on appeal, okay, that that it intends to make. And here's Amazon's argument against Bryson. Do you remember when Christine and Puya were saying, hey, this is protected, right? They are absolutely right, right, not just by the First Amendment, but under federal law, 29 USC sections 157 and 158, being able to organize the protest in the parking lot.

0:46:55 Thomas: You say this is protected, referring to Right. Right. Right, you would hope in this country that that's maybe still protected, but I don't know anymore, and

0:46:59 Andrew: Yeah. Right. But it's not just at the whim of, you know, what what Amy Coney Barrett thinks is reasonable speech near your employer. This is protected by federal law, for now, right? Section 157 says employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

0:47:29 Andrew: So, yeah, So, and then and then Section 158 makes it an unfair labor practice to interfere with, restrain, or coerce employees in the exercise of those rights. So this clearly, squarely falls within that, for right, the mutual protection of Amazon employees. Gerald Bryson was engaged in a peaceful protest in the Amazon parking lot to to try and bring about a change in in COVID conditions. So soon after he was fired, Bryson filed a complaint with the National Labor Relations Board, alleging just that, saying, right, hey, they fired me for taking a position on kind of COVID safety protocols that the company should have. That seems to me to be an unfair labor practice. The NLRB did not act on that complaint until a couple of weeks ago, until March 17th, 2022.

0:47:28 Thomas: To get fired pretextually for it.

0:48:16 Andrew: Right. So 18 months go by. In fact, almost 20 months go by, and Amazon thinks that this looks very, very fishy. Right. You didn't take this guy's case up until it was the middle of the election. And you only took his case up because you're trying to make us look bad. And so Amazon got two right wing organizations. One is the National Retail Federation, and that is signed off on by David French. And if that name is familiar, he is a National Review commentator, was once bandied about as a potential anti-Trump presidential, conservative you presidential candidate. He's just he's a right wing, you know, opinion guy. And right, the U.S. Chamber of Commerce. This is a good time to remind you. Right, the U.S. Chamber of Commerce. You can tell this because their website is U.S. Chamber dot com. It's a dot com, not a dot gov.

0:48:45 Thomas: Yeah. Yeah. Yeah. Yeah.

0:49:05 Andrew: The U.S. Chamber of Commerce is not a government entity. It's a right-wing lobbying group.

0:49:07 Thomas: I don't, I think a lot of people don't know that, including myself, you know, a few years ago. Yeah.

0:49:14 Andrew: Yeah. Yeah. No, it's that's why I wanted to emphasize it. So they got together and they basically made two arguments. Right? The first is, you know, Amazon is just really, really concerned about sexual harassment in the workplace. So, you now, it's right. And look, I don't want to undermine that. Right. Like, yes, you should have a policy in place that prohibits people from using gendered slurs at fellow employees. But one instance, right, either way, right. One instance of a racial slur, one instance of a gendered slur does not rise to the level of hostile workplace environment. It would be, again, I'm not defending it, but understood and mitigated in the context of heated dispute regarding political issues taking place at a rally in the parking lot. If there were any other record, right, of history of using gendered slurs in Bryson's employment, then I'd be with you, Yeah, right? Agree, I

0:49:17 Thomas: Yeah.

0:49:27 Thomas: Of course. Sure.

0:49:45 Thomas: Mm-hmm. Oh.

0:50:05 Andrew: But right, you don't, right. This is not how you establish a policy, but that's the reading these right wingers are quoting, concurrences from, for example, Judge Millett of the U.S. Court of Appeals for the D.C. Circuit, saying such language and behavior have nothing to do with the attempted persuasion about the striker's cause. Indeed, such behavior is flatly forbidden in every other corner of the workplace because it is dangerously wrong and breathes new life into economically suffocating and dehumanizing discrimination that we have labored for generations to eliminate. Brushing that same behavior off when it occurs during a strike legitimates the entirely illegitimate and signals that when push comes to shove, discriminatory and degrading stereotypes can still be a legitimate weapon in economic disputes. Um, again, you can police, uh, against this kind of without terminating the employee on the spot.

0:50:41 Thomas: Yes. Yeah, mm-hm. They Love nothing more than bad faith arguments that we we all know is full, is of crap. Like, we know we have the documents. We have the bad documents to like, what's their excuse with the other? Because wasn't this just one of the people they fired?

0:50:55 Andrew: Yeah. Right. Right. Yeah. No yeah the other one so that the remaining argument. Is um so we agree the Amazon is really really concerned about gendered slurs on the workplace place seems pretty pretextual okay their second argument is this is going to influence the election and it's super suspicious that the NLRB only brought it up now, so I'm going to quote from the Chamber of Commerce. You tell me if you can spot the flaw in this argument, okay? So Chamber of Commerce says none of that intervening time, right, the 20 months had the NLRB sought an injunction regarding the terminated employee yet, just as about ballots are about to be cast, the...

The agency maintains that Amazon should be forced not only to rehire the terminated employee, even if it means firing someone else, but also post copies of the court's order, should it issue one, in English and Spanish in all break rooms, bathrooms, and bathroom stalls at Amazon's JFK facility, and also asked the court to require Amazon to hold one or more mandatory employee meetings at which company management would read the court order aloud. It seems obvious that all of this would paint Amazon in a less than flattering light.

0:51:21 Thomas: I.

0:52:10 Andrew: The NLRB frequently cites employers for disturbing the laboratory conditions it seeks to maintain during an election. The agency is not supposed to disturb those conditions itself. Do you evaluate that argument?

0:52:22 Thomas: Is it just that the time is it a timing issue?

0:52:24 Andrew: Yeah, it really is just the timing. It's it's why did you sit on this for 20 months?

0:52:28 Thomas: Why did they sit on that for 20 months?

0:52:30 Andrew: So the answer is, in order to bring a complaint, you have to have approval from the National Labor Relations Board, which is a five-member executive agency whose members serve rotating terms and are appointed by the president, so you might think, hmm, I wonder if there's something different between June of 2020 and March of 2022 regarding the composition of the NLRB, and the answer is you bet your ass there's a difference. In June of 2020, it was three to one Republican, because Trump, of course, left one of the seats vacant, and it did not become three to two Democratic. Right. The seats did not get filled.

And Biden's appointees did not get approved until August of 2021. So there, now you're looking and going, oh, OK, so we couldn't do our job at the NLRB until August of 2021 and we managed to file this complaint by March of 2022. All of a sudden seems a lot more like we're acting as fast as humanly possible as opposed to we're delaying for no good reason. And I would add that Amazon, because of course it does, was able to gum up the works with respect to the request for injunctive relief and filed multiple motions and now is in the process of getting discovery. So no injunction was ever issued. The only possible interference could have been that the lawsuit got filed.

And I will tell you, this lawsuit that was filed on March 17th, 2022, was so minor, we did not cover it on Opening Arguments. Right. So I don't know how any single, any individual employee who did not otherwise know Gerald Bryson could have possibly learned about the lawsuit occurring while they were casting their votes, let alone, you know, that it would have swayed 500 votes.

0:53:20 Thomas: Yeah I see yeah

0:54:24 Andrew: This is a purely pretextual and dumb argument. But notice, right, you got to do digging. You got to get beneath the surface to show, you know, yeah, there's... there's a very simple reason why a Republican led Trump appointed NLRB would not have signed off on the complaint. And a Biden-appointed Democratic-led NLRB would have, and all of a sudden everything makes perfect sense, so

0:54:49 Thomas: I didn't that didn't occur to me because that's so obvious that I I'm surprised they could have even made that argument, but uh, no, I guess there's no shame, they're willing to make the worst arguments in defense of their union busting, got it.

0:54:50 Andrew: Yep.

0:55:01 Andrew: That is exactly the case, so um, I want to add one more, that if Amazon thinks, and by the way, the reason I know what Amazon thinks its arguments are is because it's posted it to its website, right, like these are public statements that it's made while while it is considering whether to appeal, the time on that has not elapsed. If it thinks that it can bully Biden's NLRB, they got another thing coming.

In fact, the Office of General Counsel of the NLRB issued new guidance today that is 100 percent aimed at the conduct Amazon engaged in in the unsuccessful efforts to bust the Staten Island Union and the potentially successful efforts to bust in Bessemer, which we talked about in Episode 465 and again in Episode 545, which included the long mandatory meetings that you had to go to, in which they, you know, would decry how bad unions are and they gave away like the little plush unicorns at the end and stuff, right. So uh, OGC says, in workplaces across America, employers routinely hold mandatory meetings in which employees are forced to listen to employer speech coercing the exercise of their statutory labor rights, especially during organizing campaigns. As I explained below, those meetings inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right to not listen to such speech.

I believe that NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor law principles, our statutory language, and our congressional mandate. Based thereon, I plan to urge the board to reconsider such precedent and find mandatory meetings of of this sort unlawful.

0:55:35 Thomas: Right Yeah.

0:56:44 Andrew: Again, this is a sternly worded crunch wrap, but like all office of general counsel within an executive branch agency, this has binding on the lawyers that work within that agency? So this determination is meant to reverse decades of precedent that has allowed employers to hold these, you know, propaganda sessions. I'm going to watch this very, very closely. And we're to see, you know, what the result is in terms of whether the board engages in rulemaking. But this is part of the record. And it's and it's another good illustration, right? Like how many times have we talked about being stymied by stuff, regulations, memoranda that the last guy has left around, right, in terms of leaving his imprint on executive branch agencies.

0:57:34 Andrew: This is part of our efforts to fight back, it's a great thing to see. These meetings are oppressive and ridiculous. And think that legal, the logic in saying that they constitute an infringement upon the workers' right to, you know, freely and fairly decide to collective bargain is, it's just, you without question, um, it is yet to be seen how this is going to play out in practice, uh, but I just, I love the timing on it, and I love, you the NLRB saying like, yeah, we're not, we're gonna let you push us around.

0:58:04 Thomas: So good news, uh, you know, one thing, I can't remember if you mentioned this in the original episodes, but in looking at some of the coverage of this, I guess it resonated with me how hard this has been for so many reasons, the union busting, everything, these tactics, but also just the short tenure, the average tenure of an Amazon employee. I didn't think about that. Like the average 10 year, I think is like 18 months, it's going to be really hard to get somebody motivated to a reunion for when the average time that you're even there is 18 months. So it's a huge accomplishment, and hopefully it's sign of good things to come.

0:58:36 Andrew: It's really interesting, because that that echoes, uh, almost word for word, uh, a statement that Chris Smalls made, right, in connection with this, which was, you know, for the reason we started this union is that for too long, you people would respond to these terrible conditions, you by quitting. And the problem with that is, you Amazon looks at us as fungible, right? You quit, and what that means is they hire somebody else who comes along and is stuck with the same problem. And so we wanted to get to work to actually change the underlying system and to convince people like, hey, you your options are not suffer through this or quit and find something else.

0:59:17 Clip: And thank you, Let's go!

0:59:18 Thomas: And now it's time to thank our new patrons at patreon.com/law. First. And patrons enjoy the ad free episodes. So it's the early episodes, Andrew's extra posts on Patreon, you know, you got notes, you got all kinds of perks. So join patreon.com/law. Let's give some shout outs. I'll start us off. Here's our new patrons this week. Thank you to Paul C Lustgarten, Starship D, chicken nugget sauce.

0:59:45 Thomas: What kind? I mean, there's lots of different things it could be, but most of them delicious. Sarah Dery, A clever legal joke about Owen. Okay. Okay. Christian Tesarik, Matt Garrett, David Goodwin, Cleric of vecna. I don't know what that is. Sorry. Sarah Cady. Your turn, Andrew.

1:00:05 Andrew: And a thank you to BackUpTerryBeforeTheyFriskYou!, which is a great one. Jared, sorry. To Jarred Danger isn't my middle name Power. That's good. To my buddy, Ed Chmar. Ed, welcome aboard. JamieFrancesca, Ivermectin flavored bleach, Heather Melling, lenbogan, My new Sneakers are cooler than Kyle's, they absolutely have our blessing on that, to Glynnis Thomas, and to Heather Paek. Thank you all so much for supporting the show.

1:00:38 Thomas: Not a lot of people named Glynnis. The only one I can think of is Glynis Johns, I think is that Broadway legend that I love.

1:00:42 Andrew: That's it's a great name, so

1:00:44 Thomas: Yeah, cool.

1:00:46 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:00:52 Thomas: And now it's time for T3BE back at the real questions. Didn't do so well last week. That was a warmup, you know, just taking a mulligan, getting my arm loose on that one. But let's see if I can get one right.

1:00:59 Andrew: Yeah, yeah, yeah. Spring training for Thomas, too. So maybe this will be an opening day question. All right. Thomas, a state passed a statute that conditioned the holding of a classroom teacher position in all K-12 public schools in the state on being a citizen of the United States. A group of teachers that were denied employment on the basis of their citizenship challenged the constitutionality of the statute in state court. Assuming there are no issues of standing, what is the most likely outcome of their challenge?

1:01:36 Thomas: Oh, nice short one. Love it.

1:01:37 Andrew: A, the statute will be deemed constitutional as it is rationally related to a legitimate government interest. B, the statute will be deemed constitutional as it is substantially related to an important government interest. C, the statute will be deemed unconstitutional as it is not narrowly tailored to achieve a compelling government interest. Or D, the statute will be deemed unconstitution as it infringes on a legislative area that is exclusively reserved for the United States Congress. Congress

1:02:03 Thomas: Huh. Not sure. Like, I'm trying to form even just like a, you know, a preconception just going into this. And I don't, can a state a ban, non-citizens you from being, I don't know. All right. I'm just going to have to read through the answers and see if I can figure it out. Is that a rational government interest? Well, let's see. Okay. So A is it related to a legitimate government interest. So that's just rational basis test. Okay. Okay. B, the statute will be deemed constitutional as it is substantially related to an important government interest. I guess that's maybe like a slightly higher standard, instead of rational basis, it's, can't remember the word for the other one. You got, I don't know, compelling interest or something.

1:02:50 Thomas: I can't remember. C, the statue will be deemed unconstitutional as it does not narrowly tailored to achieve a compelling, compelling government interest. I don't think it's C, because I can't think of, like, C it seems like it requires, yes, there's some government interest here, but you could achieve it some other way, and I I don't, I don't know what that would be. Like, sure, you have a government interest in not allowing citizens to be in this position, but you could do it some other way. Yeah, I don't, I can't come up with what that would be.

Who knows, maybe that'll be it, but I think so far I'm firmly not C. And, and that's about it. I'm not C, and sorry, don't take that out of context. I am not a Nazi. I am a no on C and a probably no on B. So let's look at D. The statute will be deemed unconstitutional as it infringes on a legislative area that is exclusively reserved for the United States Congress. Okay, it's A or D. I m going with A or B. And so on one hand, D is appealing Because it's like, yeah, I think that only the U.S. Congress can decide who is and isn't a citizen, stuff like that.

But I don't know that that necessarily means a state can't you know, kind of rules on the basis of those decisions, you you know? So I think, oh man, I think D is an attractive distractor. And I actually think I'm going to go with A because I think we live in a not great universe.

1:03:25 Andrew: All. Right.

1:04:17 Thomas: You know, like I did, my heart wants to go With D and maybe this is a mistake, but I'm gonna go with a I'm between A and D and I'm Going With A.

1:04:24 Andrew: And, uh, if you want to play along with SAMUS, you know how to do that. Just share this episode on social media, include the hashtag T3BE, include your guess, your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortunate not guaranteed. Why?

1:04:38 Thomas: And that's our show. Thanks so much for listening, everybody. We love you so much. Thanks to our patrons. And Andrew, thanks for the deep dive. And you know what? Most of all, thanks to the heroes trying to unionize at Amazon. Great success story. Spent They so much effing money to try to to stop that. It's appalling. So well done. And we'll see you folks next episode.

1:04:48 Andrew: Absolutely.

1:05:00 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:05:34 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.