An Uphill Battle

At a basic level, it’s important to keep in mind that labor has declined so much that any movement seems like progress. Just as one example, the abovementioned statistic about NLRB election petitions increasing by 57 percent compared to a year ago may seem impressive. But if we stay at the current increased rate of organizing petitions for the rest of 2022, we still won’t get anywhere near the number of NLRB elections filed back in 2015 — not exactly remembered as a banner year for the rebirth of union organizing and worker power.

Likewise, as inspiring as #Striketober may have been, the 80,700 workers who went on strike in 2021 amounted to one-sixth of the 485,200 workers who struck in 2018, year of the “red state revolts.” What’s more, even if strike rates returned to the 2018 level, labor would be clawing back to the strike rates of the late Ronald Reagan era. Again, not exactly a high-water mark.

And while recognizing the importance and excitement of the recent string of organizing wins, we’ve had several reminders of how tough it remains to organize. ALU was unable to reproduce its JFK8 victory at the LDJ5 sortation center next door, where workers voted two-to-one against unionizing. The revote of the Amazon election in Bessemer, Alabama, was much closer than last year, and challenged ballots could still tip the balance in favor of unionizing, but for now the pro-union votes are behind. The win rate at the dozens of Starbucks stores that have held union elections so far has been impressive, but some have still come up short, and many organizers have quit or been fired. There have also been other tough union losses recently, like the 1,400 workers at the Hershey’s candy plant in Stuarts Draft, Virginia.

Part of why unionizing remains so hard is that employers remain dead set against unions and wage scorched-earth campaigns of threats and terror to “convince” workers that unionizing isn’t in their best interest. Much of what employers do is technically against the law, but the existing penalties are so light that even if employers are found guilty of breaking the law, it’s literally more cost-effective for them to do that.

We see this in the data tracking unfair labor practice (ULP) charges, which are charges filed with the NLRB alleging labor law violations. Looking at the data for 2021, we see 15,081 ULPs filed for 954 elections, or nearly sixteen ULPs per election. Since the vast majority of ULPs are filed against employers, that means that on average, employers were accused of breaking the law close to sixteen times per union election.

That’s a rate that has been common in the United States for the past decade, as we see in the attached chart taken from my 2018 book. But it’s wildly more than elsewhere in the world. By comparison, just north of the US in the Canadian province of Ontario, we see in the second chart that the ULP/election ratio has fluctuated between 0.5 and 1.5 since the 1970s.

Clearly, employer hostility remains a key barrier to worker organizing in the United States, as it has been for decades. But there are two major differences now in terms of the response to that employer hostility.

A Better Legal Environment

First, it’s getting more publicity. While organizers and labor watchers have long known about how viciously employers fight unionization efforts, it has not been widely known among workers or the general public. Thanks to social media and more in-depth reporting from a new generation of labor reporters, word is getting out about employers’ scorched-earth anti-union campaigns.

Even better, workers have organized to push back against these tactics and turn them against employers. For example, under the guise of protecting employers’ “free speech” rights, current labor law permits employers to force workers to attend anti-union “captive-audience” meetings or one-on-one meetings with supervisors. These meetings allow employers to threaten and intimidate workers in order to undermine support for unionization.

But in some cases, workers have “flipped the script” in these meetings, creating organizing opportunities by catching employers and anti-union consultants in lies and legal violations, and changing the subject to the upsides of unionizing.

Second, while the Joe Biden administration’s efforts at labor law reform via the PRO Act have fallen flat, his appointments at the National Labor Relations Board have made a big difference. They have actively sought to rein in employers’ abusive and illegal behavior around organizing.

This is particularly the case with NLRB general counsel Jennifer Abruzzo, who has taken an aggressive approach to enforcing existing labor law and pushed to have it interpreted in ways that would expand workers’ labor protections dramatically.

At Starbucks, Abruzzo has filed complaints seeking not only to reinstate workers but to mandate training for management on basic labor rights and require that senior executives record prepared statements saying that they broke the law and that workers have a right to organize. (Executives could also be filmed listening to such a statement being read to them, potentially creating a dilemma for workers as to which option they would prefer.)

At Amazon, Abruzzo was able to settle several ULPs around organizing campaigns in New York and Chicago in December 2021. These settlements forced the company to agree to allow workers the right to discuss unionization in nonwork areas on nonwork time. This is part of the existing law, but something that employers routinely prohibit. Amazon Labor Union organizers in Staten Island made extensive use of this settlement to organize in JFK8 and pushed back against management when it tried to say the union couldn’t use the employee break room to talk about organizing.

More broadly, Abruzzo has issued briefs calling for “captive-audience meetings” to be considered inherently coercive and a violation of labor law, as well as a return to what is called the “Joy Silk doctrine.” Under this doctrine, if workers are able to demonstrate majority support for unionization in a workplace, then employers would be required to recognize and bargain with the union, unless they could demonstrate “good-faith doubt” that the union has majority support.

So the legal environment for workers’ organizing, while still a long ways from ideal, is far better than it was even a year ago.

Even so, unionizing remains exceedingly difficult. Aside from employer hostility, workers and their unions have been ground down over the past several decades. Many unions have forgotten how to fight, and many workers don’t see fighting back or demanding their rights as a realistic option. In a world with 10 percent overall union density, and much less in many industries and parts of the country, many workers just don’t know people in unions or what unions do. That makes it hard for them to see what a difference unions could make.

The higher-profile and bigger wins that unions are netting means that, for larger groups of workers, the idea of unionizing being a thing they can do is now much more part of the conversation. As New York Starbucks worker Aimes Shunk told Labor Notes, “After Buffalo won, I walked into the break room, and every single person was talking about how ‘if they can do it, we can do it!’” Likewise, in the aftermath of the JFK8 victory at Amazon, workers at more than a hundred other Amazon facilities contacted ALU about organizing.

That points to something else that’s important about this recent wave of organizing: the degree to which it is worker-led.

Worker-Led Unionizing

While they may be using the old broken NLRB framework to organize, few of the campaigns grabbing headlines today are following the standard staff-heavy union organizing model. ALU is famously independent with no paid staff. They won the JFK8 campaign with $120,000 raised via GoFundMe and some donated legal expertise and office space.

But even the Starbucks campaign, which is happening under the banner of Workers United, an SEIU affiliate, remains worker-led. At a basic level, with Starbucks workers filing nearly two union elections per day on average since January 1, Workers United simply does not have enough organizers on payroll to mount a staff-driven model, even if they wanted to. As a result, the union’s role has been more educational and advisory. As Workers United organizer Alex Riccio told the Northwest Labor Press, “Our job is to just kind of stand aside and give advice when asked, but [the workers] do everything.”

We see similar dynamics at work with other organizing campaigns. In media, “it went from hardly anything to through the roof in the past few years,” said Stephanie Basile, new unit organizing coordinator for the NewsGuild. The constant stream of new shops interested in organizing has pushed NewsGuild staff organizers to rethink their role.

“We’re more like teachers,” said Basile, “giving workers tools to organize themselves so that we can build a movement.”

The NewsGuild organizing has been based on a member-driven model built around the principle of “Learn it. Do it. Teach it.” “What we’re trying to do is connect members with each other and create structures so there are methodical ways for workers to get plugged in and organize and build something that’s long-lasting,” Basile added.

If the current organizing uptick is to escalate into something more like a wave, these kinds of worker-led organizing will have to spread to other companies and other industries. While there are some glimmers of broader activity, so far it remains unclear if this is happening.

At the same time, unions themselves have a big role to play in supporting and expanding worker organizing. This is particularly the case when it comes to consolidating organizing wins and turning them into first contracts. In the United States, this is a daunting challenge that can make the representation election seem easy by comparison.

Transforming Unions

Technically, labor law requires employers to bargain with certified unions, but there is no duty to reach an agreement, and the penalties for refusing to bargain are minimal. Meanwhile, if employers can drag out the process for one year without negotiating a contract, they can file a decertification petition to get rid of the union. This gives employers every incentive to refuse to bargain and ride out the clock.

As a result, a recent Bloomberg Law analysis estimates that it takes an average of 409 days for new bargaining units to negotiate a first contract. Studies from the 2000s showed that well over half of new bargaining units failed to negotiate a first contract after one year, with a quarter still without a contract after three years.

The past few months have shown how abruptly the organizing landscape can change. If the situation escalates to 1930s levels, where millions of workers start unionizing in short order, then worries about employers’ delay tactics surrounding first contract negotiations will become moot. Without that, however, they remain a critical concern.

Maintaining momentum from representation election through first contract negotiation and beyond requires energy and commitment, but it also requires structure and organization. That requires resources, especially when it comes to scaling up operations. No leftist, progressive, or pro-worker organizations have the resources that unions do.

The problem is that few unions today have the energy and commitment to organize at the scale necessary, as evidenced by repeated failures to organize major targets like Walmart, Amazon, auto “transplants” (factories run by non-US auto firms), and more. Far too many remain focused on being good “partners” with management, or demonstrating the “value added” that unions can provide to employers, as opposed to developing the fighting capacity to take them on.

That means that unions have to change too. Some of that can come from new organizing injecting new life into existing unions, or new unions forcing existing unions to step up their game, as happened with the American Federation of Labor (AFL) and the Congress of Industrial Organizations (CIO) in the 1930s. But a lot must come from within.

New leadership can make a difference. It matters that prominent labor leaders like the the Association of Flight Attendants’ (AFA) Sara Nelson and the International Brotherhood of Teamsters’ (IBT) Sean O’Brien are embracing the new organizing at Amazon and Starbucks and openly stressing the need for more strikes to rebuild labor’s power. Nelson’s union is currently trying to add to the organizing uptick with a revived union drive among 24,000 flight attendants at Delta Airlines, long a bastion of anti-unionism. In addition to a more muscular approach toward organizing Amazon, O’Brien has committed to organizing in key sectors like school transportation, ready-mix, and sanitation.

But leadership is not enough. Ultimately, transforming unions has to be the job of an active and involved rank and file. And here we can point to some promising developments, even though they may not be getting the attention that Amazon and Starbucks organizing has.

Promising Stirrings

One is the changes underway in the Teamsters. Still one of the largest unions in North America with 1.3 million members, including major concentrations of members throughout the logistics sector, a revitalized IBT is an essential part of any plan for rebuilding US labor’s power. O’Brien came to power after a contested leadership election last fall where he defeated the hand-picked successor of longtime incumbent general president James P. Hoffa by a two-to-one margin.

O’Brien has a more militant approach than his predecessor, but his ability to deliver will depend on the members mobilizing behind him — and holding him accountable. He was elected with support from Teamsters for a Democratic Union (TDU), the rank-and-file reform movement in the union, and a campaign fueled by member anger at Hoffa’s concessionary contracts. Where the previous leadership stymied member involvement and used constitutional loopholes to bypass majority rule and impose concessions, members are now looking for a leadership that will organize with the members to fight employers.

It is still early in the new administration, but so far O’Brien’s team has been spending their time in office visiting Teamster shops around the country, walking picket lines, and ramping up the unions’ education and organizing programs.

The big test comes next summer, when the national UPS contract expires. Covering 330,000 workers, it is the largest private sector contract in North America by far, with ramifications for labor and the US economy more broadly. O’Brien has talked openly of striking UPS and is building a contract campaign leading up to the expiration on July 31, 2023. Meanwhile, TDU is mobilizing independently around the UPS contract, as it has in the past. The difference now is that it can work with IBT leadership to organize Teamster members, as it did in the leadup to the successful 1997 UPS strike.

Another promising development is the reform process currently unfolding in the United Auto Workers (UAW). The union currently counts just over 372,000 members, a steep decline from its peak of more than 1.5 million members in 1979, but remains historically and strategically important.

At a basic level, the UAW remains critical to reorganizing the automotive industry. Even after decades of plant closures and deindustrialization, it still accounts for over 3 percent of US gross domestic product. But the way the US automotive industry has restructured in recent decades has made organizing auto even more of a strategic imperative.

That’s because a sizable chunk of the US auto industry did not pack up and move abroad, as standard globalization narratives tell us. Rather, it moved away from urban hubs, particularly Detroit, and toward the US South and rural Midwest. Meanwhile, the unionized “Big Three” focused on assembly, outsourcing their parts production to largely nonunion suppliers. At the same time, non-US automakers set up more “transplants” in the United States, all nonunion and almost exclusively located in the South.

As a result, organizing the auto industry has become intimately intertwined with the broader strategic imperative of organizing the South. As Michael Goldfield and others have argued, US labor’s failure to organize the South is one of, if not the key factor in explaining unions’ long-term decline. By extension, any viable plan for labor’s revival must involve organizing the South.

The problem is that the UAW is in no shape to engage in such a bold organizing drive. The union that spearheaded the Flint sit-down strikes in the 1930s and embodied the strong, progressive variant of postwar business unionism has faltered in recent decades. In the face of auto industry restructuring and plant closures, the UAW aggressively embraced labor-management “partnership” and lean production in a losing effort to retain “market share.” It has paid the price in weakened multitiered contracts, decimated membership, and a union leadership that has grown into a corrupt appendage of management.

Last year, as part of a settlement of a massive corruption case filed against the union, UAW members got to vote to change how top union leadership is selected. They voted overwhelmingly for a system of direct election of top leaders, similar to what happens in the Teamsters.

The “one member, one vote” campaign was led by a rank-and-file group of UAW members called Unite All Workers for Democracy (UAWD). It is the product of a coalition of auto workers and a newer but increasingly important segment of UAW members: academic workers. Having won a decisive victory in last year’s referendum, they are now focused on using the right to vote to transform their union.

The next step is the UAW constitutional convention in July, at which UAWD is campaigning for a series of priority amendments and resolutions around the theme of “No Corruption. No Tiers. No Concessions.” They are also forming a slate of reform candidates that can win a direct election this fall and begin the work of rebuilding the union.

They recently scored an early victory in the run-up to the convention, when the international executive board voted to raise strike benefits to $400 per week. This was precisely the amount that UAWD had campaigned for. As part of that campaign, they managed to get twenty-four UAW locals representing over 180,000 active and retired UAW members to pass resolutions calling for the hike in strike pay, putting additional pressure on top leadership.

The fight at the convention will now focus on whether strike benefits start on day one or day eight, as is current practice. Convention delegates will no doubt have the example of the Teamsters in mind as they debate, as O’Brien’s slate was able to pass a resolution at last year’s IBT convention to start strike benefits on day one.

A revitalized IBT and UAW could go a long way toward shifting the center of gravity within existing unions in a more militant direction. This in turn would create a more favorable climate for supporting the independent worker organizing currently underway.

Institutionalizing Insurgency

Overall, the current situation looks promising. But turning that promise into something bigger involves solving the problem that unions perennially face: that of institutionalizing insurgency. Unions need the energy and militancy of workers in motion to grow but need structure and organization to consolidate gains. These two needs coexist uneasily with each other, and too often unions have resolved the tension by stifling workers’ energy in favor of shoring up unions’ organizational structures.

So far, unions’ response to the organizing uptick suggests that they understand the challenge they face and the importance of maintaining workers’ grassroots energy. In the aftermath of ALU’s victory in Staten Island, the AFA’s Nelson called on fellow union leaders to support the Amazon workers. “They need resources, they need money, they need organizers. Give it, and give it freely,” she said. Importantly, she added that “any kind of attempt to control the excitement and the creativity and the spontaneity of the awakening of solidarity is a foolhardy action.”

Meanwhile, the IBT’s O’Brien invited ALU leaders Christian Smalls and Derrick Palmer to IBT headquarters in Washington, DC, to discuss how they could work together. O’Brien pledged to ALU its in-house counsel, access to its research and education departments, and monetary support. Smalls emphasized that ALU would remain independent but welcomed the resources of its larger, more established allies.

While O’Brien has been up front about the fact that the IBT is the union with a proven track record of organizing and representing logistics workers, he recognized the importance of helping ALU build on its victory. “Organized labor has to unite around this group,” he said. “[A]t the end of the day, this isn’t just about one union. It’s about every single union.”

If existing unions manage this balancing act and amplify existing organizing without getting in the way, then this could be the beginning of something bigger.