The Next Round of the Union Fight
Speaker A: You.
Speaker A: 2023 was the year of the union.
Speaker B: LA is a union town from the.
Speaker A: Writers and actor strikes in Hollywood, California.
Speaker C: You know, we’re just trying to pay our rents, our mortgages, and put food on the table.
Speaker A: Most of us are, you know, middle class.
Speaker A: To the united auto workers in Detroit, Michigan.
Speaker B: I am a third generation auto worker, man, and it’s hard for me to make a living off $17 an hour when you have CEOs sitting in an office making millions of dollars a year.
Speaker A: Picket lines were in vogue and they got results.
Speaker A: Noam Scheiber is a workplace and labor reporter at the New York Times.
Speaker D: We’ve had a number of unionized workers wage very successful strikes.
Speaker D: And we’ve just had workers that hadn’t appeared to make a lot of progress in union campaigns suddenly kind of negotiating from strength with their employers in a way that we just haven’t seen in a very long time.
Speaker A: The US seemed to be entering another worker era, or at least a unionized worker era.
Speaker A: But now big companies are fighting back, including Amazon, Trader Joe’s, and SpaceX.
Speaker D: So all three businesses have been on the receiving end of nlrb complaints for somewhat different violations of labor law.
Speaker A: The nlrb is the National Labor Relations Board.
Speaker A: It’s the government agency that enforces labor law.
Speaker D: Basically, the NLRB has come after all three of these companies and said, you in different ways have violated labor laws.
Speaker D: In some cases, it’s for illegally firing employees.
Speaker D: That happen in SpaceX and Amazon.
Speaker D: In some cases, it’s just failure to bargain in good faith.
Speaker D: Amazon and Trader Joe’s have both been companies where workers have unionized in the past few years.
Speaker D: And in some cases, the board has said you are not bargaining the way that you should be bargaining with these workers.
Speaker A: All three companies are now suing the nlrb, claiming that the structure of the agency is unconstitutional.
Speaker A: And last week, the nlrb found itself in a courtroom again after a judge struck down an nlrb rule that would have required big employers to treat franchise workers as employees.
Speaker A: So you could look at this and the lawsuits against the nlrb and think big companies are hitting the employees where it hurts.
Speaker A: And the little guy, the Davids in the constant David versus Goliath tale that is the worker versus the industry, is back to being at the bottom.
Speaker A: But Noam says that’s not really the case.
Speaker D: In the past several years, and especially in the past few months, we’ve really seen a lot more momentum on the employee side.
Speaker D: In terms of momentum, I think we’ve really seen the workers in some of these union campaigns really make gains that were pretty unexpected.
Speaker A: Today on the show, Goliath is swinging at David Hard, but David’s not out yet.
Speaker A: I’m Shayna Roth, filling in for Lizzie O’Leary.
Speaker A: This is what next?
Speaker A: TBD, a show about technology, power, and how the future will be determined.
Speaker A: Stick around.
Speaker C: You have described the labor movements and machinations within the last few years as a play in three acts.
Speaker C: So in late 2021, employees at huge companies like Starbucks and Apple started unionizing.
Speaker C: What was going on at that time?
Speaker C: What was it about 2021 that really kicked this off?
Speaker D: Yeah, like the fall of 2021 through the spring of 22, that’s when we suddenly had workers unionizing successfully at a bunch of companies that hadn’t previously been unionized, at least not recently.
Speaker D: So, obviously, at this point, we’re still pretty early on in the pandemic.
Speaker D: A lot of workers at these companies, they were sent home, in some cases for a little while, but then they brought them back a few months after the beginning of the pandemic.
Speaker D: In some cases, workers were pretty freaked out by the conditions.
Speaker D: They just didn’t feel like there was adequate spacing and masking, and they just generally felt pretty concerned about their health.
Speaker D: At the same time, a lot of these companies started doing really, really well financially.
Speaker D: During the pandemic, you had Amazon and Apple just making very large profits.
Speaker D: And so the combination of these two things that kind of radicalized a lot of employees at that moment, and we saw campaigns know just sort of appear to be out of the blue, suddenly taking hold at Starbucks and Amazon and Apple and Trader Joe’s and Rei, companies that just hadn’t been unionized and hadn’t even observed much of a threat in their eyes from unionization.
Speaker D: Suddenly they were facing these campaigns that were gaining traction and starting to win elections.
Speaker C: So then you get 2022 and these big companies, Starbucks, Apple, what have you start pushing back, firing union members, sort of standard union busting tactics.
Speaker C: Did that have the effect that they were going for?
Speaker D: Yeah, so I think we saw a couple things.
Speaker D: These companies, who were sometimes caught off guard and taken by surprise by these labor campaigns, really kind of swung into action and basically kind of tried to put the top back on this Pandora’s box that had been unleashed.
Speaker D: They did a whole variety of things.
Speaker D: In some cases, they raised wages.
Speaker D: They introduced new benefits.
Speaker D: In other cases, they allegedly fired and disciplined workers who had been involved in the union organizing.
Speaker D: Whatever it was, whatever combination they chose, this proved to be pretty effective at slowing down or completely stopping a lot of the organizing that had been happening.
Speaker D: And so I would say sort of from mid 22 through the middle of 2023 last year, that organizing campaign that had caught a ton of momentum earlier really kind of ground to a halt.
Speaker D: We really saw the number of Starbucks stores which had exploded in the first few months of 2022.
Speaker D: The number of stores that were filing for union elections really slowed down.
Speaker D: We saw workers after the first Amazon warehouse was unionized.
Speaker D: There were a few other elections at other Amazon warehouses.
Speaker D: Those all failed.
Speaker D: So, yeah, we really did see this kind of losing momentum, and the organizing really starts to slow down in the second half of 2022.
Speaker C: Okay, now we’re going to fast forward to mid 2023.
Speaker C: Labor wins in Hollywood.
Speaker C: With the writers strike and the actors strike, the UAW gets a big win.
Speaker C: Starbucks is now successfully unionizing some of its stores.
Speaker A: What is the state of the labor.
Speaker C: Movement from that point on?
Speaker D: Yeah, I think you really see this swing in the other direction where we really did see things start to move forward again pretty quickly.
Speaker D: It just kept sort of moving across different industries.
Speaker D: A lot of workers, say at Starbucks, were paying attention to what was going on with the actorstrike, and the auto workers were paying attention to what was going on at Trader Joe’s and Amazon.
Speaker D: And at one point last fall, in the fall of 23, I did a story about doctors, private sector doctors, who were unionizing for the first time, really in large numbers.
Speaker D: And when I would ask the doctors what they were paying attention to in the news, they would tell me the same things.
Speaker D: We were watching the auto workers strike, we’re watching the Hollywood strike.
Speaker D: So we suddenly see this kind of worker consciousness that was crossing class and education and a whole variety of industries.
Speaker D: And so I would say now we’re in another moment where the workers and the unions really do seem to have more momentum.
Speaker C: You’ve argued that workers are the ones sort of on top right now, and I feel like that’s counterintuitive to what a lot of people are thinking when they think of these companies.
Speaker C: I feel like a lot of people are probably like, well, nobody’s got more money than Amazon.
Speaker C: How can they not be the ones on top?
Speaker C: So talk us through that argument that the workers are the ones with the power right now.
Speaker D: Yeah, I would put it less as with the advantage or the power.
Speaker D: As I say, I think the employers have a ton of power, both in terms of financial resources and in terms of labor law.
Speaker D: But I do think that there is a kind of momentum shift toward workers and toward employees who are trying to unionize.
Speaker C: Now, I want to shift gears a little bit and dig into the NLRB, which is the National Labor Relations Board.
Speaker C: So while several companies are facing union efforts, Amazon, SpaceX, Trader Joe’s, they’re making arguments that the NLRB is unconstitutional.
Speaker C: Why are they saying the board is unconstitutional?
Speaker C: And do they have a case?
Speaker D: Yeah, it’s a really great question.
Speaker D: So I should point out at the outset that the NLRB was created in 1935, and two years later, the Supreme Court ruled on its constitutionality and affirmed it.
Speaker D: So the reigning precedent goes back almost 90 years, and it’s favorable to the NLRB.
Speaker D: These employers are making a number of pretty esoteric arguments about the board’s constitutionality.
Speaker D: One is that apparently in the constitution, if a court is going to apply certain penalties or seek certain legal remedies, then the defendant in that trial or that case is entitled to a trial by jury.
Speaker D: And the argument is that, well, the cases that are brought before the NLRB, there’s no jury.
Speaker D: So that’s one argument.
Speaker D: There’s another argument that basically has to do with separation of powers doctrine in the constitution.
Speaker D: And again, this stuff gets pretty weedy and esoteric pretty quickly.
Speaker D: But I think the argument there is that the NLRB is part of the executive branch and the president is the head of the executive branch, and as such, he should be able to remove nlrb judges and nlrb board members pretty easily.
Speaker D: But the way the NLRB is set up, it’s very difficult for the president to actually remove these judges and remove these board members.
Speaker D: And so that violates the constitution as well.
Speaker D: So as you can tell, it gets pretty technical, pretty esoteric, and none of these arguments have really been made for decades.
Speaker D: But in the past few months, we’ve seen them proliferate across employers.
Speaker C: I mean, it sounds like this board is, for all intents and purposes, a political board.
Speaker C: The board members and general counsel are appointed by the president.
Speaker C: They’re confirmed by the Senate.
Speaker C: So there’s just this constant shift in what the board wants its views, depending on whether or not it’s majority Republican or Democrat, which seems like a frustrating way to determine labor rules.
Speaker C: How powerful is this board, really?
Speaker D: You’re absolutely right that the decisions that are handed down by the labor board and the rules that are put forth, they do often change from administration to administration, and that can be very frustrating and unpredictable for employers.
Speaker D: This rule that we talked about a little while ago, the joint employer rule, I remember writing a piece in 2016 at the end of the Obama administration saying the labor board had really shifted this joint employer doctrine.
Speaker D: And then a few years later, when Trump was president, they changed it back.
Speaker D: And so I wrote another piece, and then Biden came in, and he then changed the joint employer doctrine again to make it more favorable to workers who were arguing that they were employed by large companies like McDonald’s, not just by a franchise that happened to hire them.
Speaker D: So this stuff, it does bounce around quite a bit.
Speaker D: It’s not necessarily unique, but it does at the NLRB.
Speaker D: It can shift very, very quickly.
Speaker D: There’s not a lot of inertia in these rules.
Speaker D: And that can be kind of dizzying for both workers and for employers.
Speaker A: When we come back, could the election bring all this momentum to a grinding halt?
Speaker C: So, I mean, going back to Amazon and SpaceX and all of their complaints about this board, I mean, it sounds like these companies are recognizing the power of labor and are looking for radical.
Speaker A: Ways to halt labor progress.
Speaker C: I mean, does that signal anything to you about how these big companies are grappling with all of this?
Speaker D: Yeah, labor law in this country is pretty weak.
Speaker D: Enforcing labor law takes a really long time.
Speaker D: If you’re a worker who gets fired and you believe it’s for union organizing, and the nlrb believes that, too, and they bring a complaint, it can literally take years for you to win and for you to be reinstated.
Speaker D: The point of the NLRB was to preserve labor peace.
Speaker D: We had all these crippling strikes in the 1930s, and a lot of employers said, enough of this.
Speaker D: And so part of why a lot of them bought into it was that this could bring peace and make the workplace and make their business less vulnerable to disruption.
Speaker D: So this is a system that has worked for employers for many, many decades, and for many, many decades, they’ve been, on balance, pretty satisfied with it.
Speaker D: So I think if you have a system that has been pretty favorable to employers and has worked pretty well, and suddenly employers are starting to turn against it and really questioning its basic foundations, then you have to wonder, well, what’s going on to change their view of this?
Speaker D: And I think given some of the traction that these union organizing campaigns have gotten, my read would be that suddenly this system that looked like it had worked pretty well for employers for many, many decades, maybe doesn’t look like it’s favorable to them anymore.
Speaker D: And so suddenly there’s this questioning of whether it’s the right system for our country.
Speaker C: Can labor sustain this momentum through 2024, do you think?
Speaker C: I mean, what is all of this heading toward?
Speaker D: I think we have a number of things that are going to kind of determine which way this goes in the next several months.
Speaker D: One, as I mentioned, is the United Auto Workers union.
Speaker D: They have a few elections that are likely to come up at companies like Volkswagen and Mercedes.
Speaker D: And if those go know, I think we could very easily see a wave of union elections, successful union elections across a whole number of other automakers, and that could easily spread to other manufacturers.
Speaker D: And I think the second thing to watch for is there are now 400 stores or so at Starbucks that are unionized.
Speaker D: They are going to try to negotiate contracts for all those workers at all those stores and also settle on a process that will allow workers to unionize at other stores without opposition from the company.
Speaker D: And so, know, we could just see a wave of union organizing across Starbucks, across other fast food companies, if that comes to pass in the other direction.
Speaker D: I think the election, the presidential election campaign is really going to be an important factor here as well.
Speaker C: Yeah, I mean, it seems like given how political the NLRB is, whoever has the White House sort of controls labor to some mean.
Speaker C: And if it goes to the mean, what are the specific changes that you think that would cause for the momentum that a lot of the workers have gotten?
Speaker D: When Donald Trump was president, his appointees to the nlrb were less sympathetic to unions in their interpretation of the law, whereas Biden’s nlrb and the general counsel of the nlrb has been much more sympathetic to unions, has been much quicker to bring complaints against employers, to accuse them of breaking the law.
Speaker D: And so this election could have real consequences for the direction of this organizing burst that we’ve seen in the last year or two.
Speaker D: But all of that said, if you don’t have real bottom up energy, if you don’t have workers who want to take the risk and who really see a benefit to unionizing, if you don’t have workers who can look at other workers in other industries who’ve done this successfully and provide a model for how to do it, even the most sympathetic NLRB in history is really not going to get the job done.
Speaker C: Noam Scheiber, thanks for coming on the show.
Speaker D: Yeah, really enjoyed it.
Speaker D: Thanks for having me.
Speaker A: Noam Scheiber is a workplace and labor reporter at the New York Times, and that’s it for our show today.
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