By: Adrienne Viarengo
Union support is high; a recent Gallup poll had the approval of labor unions at 67%. Support has been higher only two other times: last year when approval was at 71% and in the 1950’s when union support peaked at 75% post-World War II, a time when over a third of wage and salary workers were unionized. The high unionization rates of the mid-century helped build a robust middle class but in the decades that followed, unions shrank and companies consolidated. As of 2022, 11.3% of wage and salary workers were unionized, yet 47% of Americans believe unions should have a greater influence in the country and 34% believe unions will continue to grow stronger in the future. This is evidenced by the 53% increase in union election petitions that the National Labor Relations Board (“NLRB”) received over the past couple of years. Large unions such as the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”) are capitalizing on this robust public support and increased interest of workers seeking to unionize. In 2022, for the first time in two decades, the AFL-CIO raised member dues, specifically to fund new organizing efforts.
Unionizing isn’t purely about fighting for increased wages and working conditions – though executive pay and corporate profits have risen faster than wages for workers. Collective organization of workers can serve as a check on corporate power in a way that other tacts have fallen short. Tech behemoths operate as untouchable in many ways, their economic power being so great that fines or other measures seem to roll off their backs. This is in spite of the efforts of Congress and the Federal Trade Commission to hold big tech accountable for antitrust violations and anti-competitive mergers. But public perception and reputation are strong motivators and nothing hurts public perception of a company quite like its own workers speaking out against it.
Take the example of over 650 Salesforce employees who wrote a letter to CEO Marc Benihoff criticizing the company’s work with the U.S. Customs and Border Patrol, claiming the association was in opposition to the progressive reputation of the company. Facebook weathered a Cambridge Analytica whistleblower who made allegations of data mis-use at Facebook. T he social media giant’s handling of racial justice protests, postings regarding extremist uprisings, and political disinformation was heavily criticized by employees in leaked internal communications. More leaked emails publicized employees’ criticism of a Google initiative to use artificial intelligence in support of the U.S. military’s automated drone programs; Google did not renew the contract. Google employees also organized a global walkout in response to the publication of a $90 million exit payout to Android creator Andy Rubin due to allegations of sexual misconduct.
These efforts by tech employees to collectively speak out against their employers show an eagerness to enact change from within their workplaces– a strong foundation for unionization efforts. That is what led the Google Alphabet Workers Union workers to organize; the union leadership stated “[f]or far too long, thousands of us at Google — and other subsidiaries of Alphabet, Google’s parent company — have had our workplace concerns dismissed by executives.” The Google Alphabet Workers Union, although a minority union without direct negotiating power, organizes full-time workers, vendors, contractors and temporary employees, advocating as a collective. Additionally, despite most large tech companies remaining non-unionized, workers at Microsoft, Apple, and Amazon have also successfully organized small groups, effectively breaking down barriers and allowing unions a foothold for the first time in the tech space.
Some tech employers –perhaps seeing unionization as inevitable– are at least publicly accepting the idea. Last year, Microsoft announced that it would not stand in the way of any workers who sought to unionize, signaling a shift in acceptance of traditional technology office workers’ efforts to unionize. Previously, union efforts in the technology sector had been primarily centered on retail, manufacturing, and warehouse workers.
Others are pushing back – hard. That resistance isn’t new. In keeping with the general response to tech unionizing in the 1990’s, Intel co-founder Robert Noyce argued that “remaining non-union was the key to survival for most of our companies. If we had the work rules that unionized companies have, we’d all go out of business.” In the face of corporate opposition, efforts by the tech industry in the 1990’s to unionize were unsuccessful, as groups were unable to recruit the membership necessary to attain recognition by the NLRB.
In April of 2023, Amazon interfered so extensively at one Arizona warehouse workers unionization vote that the NLRB ordered a new vote. While the NLRB protects the right to organize and the right to join a union established under the National Labor Relations Act, employers violate these rights with impunity. Unfair labor practice charges filed with the NLRB in the first six months of fiscal year 2023 are up 16%, and employers are charged with violating federal law in 41.5% of all union election campaigns. Illegal tactics include firing workers for union activity, threats, surveillance and harassment of workers. It is legal to hire what are known as union avoidance consultants and furthermore, large-scale tech layoffs serve to break up groups of employees and foster fears regarding job security, ultimately harming organizing efforts.
Despite the challenges, the NLRB recently made two announcements that aim to make forming and joining a union easier and faster. First, on August 24, the NLRB rolled out a final rule amending the procedures governing representation elections and reducing the time it takes for workers to get from a petitioning stage to an election stage as well as expediting post-election litigation. NLRB Chair Lauren McFerran stated, “[i]t is a basic principle of the National Labor Relations Act that representation cases should be resolved quickly and fairly…by removing unnecessary delays from the election process, the new rule supports these important goals, and allows workers to more effectively exercise their fundamental rights.” The new rule, adopted August 24, will take effect in December. Second, on August 25, the NLRB announced their decision in Cemex Construction Materials Pacific, LLC v. NLRB, a case that aimed to essentially restore portions of the now defunct Joy Silk Doctrine by reasserting the right of workers to negotiate once the majority signed union cards. While the employer has two weeks to demand proof of the majority, they must recognize and begin negotiation or the NLRB may order the employer to the table and require strict progress reports to ensure compliance. The bad news –hundreds of challenges are expected to attempt to chip away at this. The good news –the Cemex rule is immediate and also retroactive for all pending cases, again speeding up organization for many and perhaps laying a stronger foundation for increased unionization efforts in tech.
Student Bio: Adrienne Viarengo is a second-year J.D. candidate at Suffolk University Law School and is a staff writer for the Journal of High Technology Law. Adrienne has extensive experience working in Democratic politics and government, both in the U.S. Senate and on national and statewide campaigns. She received a Bachelor of Arts Degree in Political Science with a History minor and concentration in International Relations and a Bachelor of Arts Degree in English at the University of Massachusetts Amherst.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
