Zulay Valencia Diaz
Loyola University Chicago School of Law, JD 2024
In the last few years, especially after the start of the COVID-19 pandemic, there has been a noticeable growth in US labor organizing. Workers all over the country, from both large corporations and small companies, have gone on strikes and began forming labor unions in an effort to get better wages, working conditions, and benefits. Most recently, employees at large rail unions rejected a tentative deal to avert a walkout in September 2022 after it failed to adequately address their concerns. This is the latest, but certainly not the only, instance of workers demonstrating their increased bargaining power. We have also seen increased unionization movements by corporate employees at corporations like Amazon, Google, and Starbucks. However, as more corporate employees attempt to unionize, corporations have begun to push back, and the National Labor Relations Board (NLRB) has stepped in to put a stop to blatant anti-unionization efforts.
An organizing boom
During the first two weeks of September 2022 the country held its collective breath as a large rail workers strike loomed, threatening freight shipping, passenger travel, and the larger economy. For two years, railway union leaders and rail carriers had been unsuccessfully attempting to negotiate a new contract. After the board President Biden appointed in July failed to yield solutions, the rail unions’ rank and file threatened to walk out. At the eleventh hour, Biden and his advisors managed to broker a tentative deal and avert the walkout. However, a month later, fears of a strike have once again arisen after members of the Brotherhood of Maintenance of Way Employees (BMWE) voted to reject the deal 56 to 43. They feel that this proposed contract, which only includes one day of paid sick leave, doesn’t go far enough in addressing their concerns
Similarly, Amazon workers’ unionizing efforts began in 2020. Concerned with the safety conditions in JFK8, Amazon’s only warehouse and fulfillment center in NYC, at the start of the pandemic, supervisor Christian Smalls planned and attended a walkout. In response, Amazon created a 10-department team to find a solution to these organizing efforts. Eventually, Smalls was fired for “violating quarantine rules”. This supposed infraction occurred when he attended the walkout. But despite the company’s coordinated efforts, workers at the JFK8 location voted to form a union in April 2022.
Other well-known companies are dealing with union organizing efforts of their own. In November 2021, a Starbucks location in Buffalo, NY became the first of the coffee company’s retail locations to vote to form a union. Other stores quickly followed, and by the beginning of October 2022, more than 240 locations had voted to join the Workers United union. Workers at tech giants Google and Apple are also organizing, although at a much slower pace than Starbucks. In June 2022, a store in Maryland yielded the first successful organizing results among Apple stores when it voted to become part of the International Association of Machinists and Aerospace Workers. Similarly, Google workers and contractors have begun to organize. In March of this year, Google contractors in Kansas City voted to join the Alphabet Workers Union; other workers have also begun efforts to hold union elections.
As soon as workers started their labor organizing efforts, the corporations they work for began mobilizing to stop them. The last two years have been filled with news of the various tactics these corroborations have used to achieve their goals. For example, Starbucks has rolled out a new slate of improved benefits for its workers. These benefits include higher wages, credit card tipping, and faster sick time accrual. However, the benefits apply only to non-unionized stores. Additionally, numerous union leaders have been fired. And despite its claims that this wasn’t retaliatory but rather prompted by these workers’ misconduct, at least seven of them—the Memphis Seven—were unfairly dismissed.
Apple is also engaging in anti-union efforts. It has relied on the practice of holding captive audience meetings—meetings in which workers are forced to listen to anti-union talking points—to combat organizing efforts. Apple has also restricted the placement of pro-organization flyers in its stores. These tactics have lead several stores to abandon their unionization efforts.
Legal repercussions for union busting
The NLRB has filed numerous complaints in response to the blatant union busting strategies companies are employing. These complaints primarily allege unfair labor practices. Starbucks, for example, has been accused of hundreds of violations of the National Labor Relations Act (NLRA). Apple and Amazon are facing similar allegations. The NLRA protects workers’ right to organize and form unions. To this end, it prohibits employers from employing tactics like spying on union meetings, threatening shutdowns, and increasing wages and benefits as an incentive to dissuade unionization. In addition, the NLRB’s general counsel has issued a memo requesting that the board change its policy and declare captive audience and other mandatory meetings to be in violation of the NLRA.
Unfortunately, the protections offered by the NLRA are insufficient to truly safeguard labor organizing attempts. Companies who interfere with organizing efforts receive little more than a reprimand. At times, the administrative law judges (ALJs) resolving these complaints will order them to reinstate the people they unfairly fired. The NLRB doesn’t have the ability to fine companies for infringing on workers’ attempts to organize so employers lack an incentive to honor workers’ right to organize. If workers’ ability to organize and join unions is truly to be respected and encouraged, as President Biden claims he is in favor of, it is necessary for legislation bolstering the NLRB’s resources and authority to be enacted. Otherwise, corporations’ interference will go unchecked and this momentum for labor organizing will be snuffed out.