Corporate delay tactics are clouding union wins in New York

This Labor Day, the most pressing question for New York’s labor movement is how it can reverse the historic declines – decades in the making – in the percentage of workers represented by a union. For the vast majority of the past 40 years, New York has been the most unionized state in the country. However, since 2018, it has given that crown up to Hawaii – and may not ever get it back. 

Last year, New York had a larger decline in unionization – going from 24.1% of employed workers in 2021 to 22.1% last year – than all but one other state, Maine. And it was one of 24 states to see a decline in unionization. Now, while unionization is slowly shrinking nationwide, New York politicians support unions as vocally – or more so – than in any other state. And it has seemed like New York has been a font of positive unionization stories over the past three years during the COVID-19 pandemic.

The movement to unionize Starbucks stores began in Buffalo in 2021 and has led to dozens of union elections in New York. Workers at an REI store in SoHo, Manhattan, made headlines last year for successfully voting to form a union. At Barnes & Noble’s flagship store in Union Square, workers voted to join the Retail, Wholesale and Department Store Union. Workers at eBay-owned TCGplayer in Syracuse have been stymied in their efforts to join Communications Workers of America Local 1123 since March. And, of course, Chris Smalls and the Amazon Labor Union had a historic union election win against the e-commerce giant at a Staten Island warehouse in April 2022.

So why is New York falling behind?

Across the nation, and here in New York, organizers who have won union elections in places like Starbucks and Amazon have been delayed in getting their first contract by corporations’ hardball tactics that use successive legal challenges to round after round of union wins before the National Labor Relations Board.

It’s a strategy that, for years, appeared to be effective in holding back union recognition even as the movement’s popularity and approval ratings continued to surge to record levels. And those delays may also be impacting the federal government’s statistics for last year, gumming up the pipeline of union recognition and driving down New York’s percentage of unionized workers – for now.

However, organizers got some good news on Aug. 25 when the National Labor Relations Board issued a decision “announcing a new framework for determining when employers are required to bargain with unions without a representation election,” the board said in a press release.

Going forward, when a union requests recognition on the basis of support from a majority of employees, “an employer must either recognize and bargain with the union or promptly file” seeking an election. “However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and – rather than re-running the election – the Board will order the employer to recognize and bargain with the union.”

Bloomberg Law reported that the union looking to organize Trader Joe’s on the Lower East Side that lost its April recognition vote with a tie vote was the first to file for relief under the board’s new framework.

Blocked at every turn

For labor leaders, these delay tactics and challenges through the National Labor Relations Board have been common. Vincent Alvarez, president of the New York City Central Labor Council, said in the cases he’s tracking that he sees violations in federal labor law “in probably a third of the ongoing organizing campaigns.” He said it can take years after workers have legally voted to be represented for them to get their first contract. Alvarez said Congress needs to pass the Pro Act, which would put a one-year limit between the union vote and that crucial first contract, among those things. “This process has been made a mockery of by the corporations,” Alvarez said.

Joshua Freeman, noted labor historian and professor emeritus at Queens College, said that while corporations like Starbucks and Amazon’s “systematic resistance program of resistance and breaking labor law” is helping to keep down union density, but “it’s not the only factor.”

Mario Cilento, president of the New York State AFL-CIO, which represents 2.5 million workers in 3,000 unions, said part of the drop in unionization last year could be attributed to the COVID-19 pandemic and the unprecedented shutdown of the economy. “The pandemic played a big role but there’s always an ebb and flow to these numbers – they go up and down year to year,” Cilento said.

He added that the state’s union movement had scored several landmark legislative victories in Albany.

“You have seen the legislation we have passed over the last few years like the New York State’s Farm Laborers Fair Labor Practices Act, which meant that thousands upon thousands of workers who for all these years did not have the right to join a union, now have the right to do so and the RWDSU is doing great work organizing them,” Cilento said. “We’ve passed legislation for labor peace in the cannabis industry and on climate change to ensure we move into a just transition that will advance organizing workers. … You will see great gains over the next several years as a result of these efforts.”

Manny Pastreich, 32BJ SEIU’s president, told City & State that while polls show that two-thirds of Americans want a union, that number would likely plummet when workers realize in pursuing one by an election “you probably are going to be fired, you definitely are going to be intimidated, you will be definitely going to be in a stressful workplace for months if not years and you may never get contract. … That’s what you have to do in order to overcome a tremendous amount of employer opposition.”

Chris Smalls founded the independent Amazon Labor Union, which won the landmark vote to represent 8,000 employees at Amazon’s largest Staten Island warehouse but has yet to get the multinational corporation to negotiate its first contract.

The Amazon Labor Union has won round after round before the National Labor Relations Board, with an NLRB judge ruling in January that Amazon broke the law by threatening to deny workers a wage increase and enhanced benefits if they opted for a union. Last month, the NLRB filed a complaint alleging Amazon had illegally “failed and refused to bargain” with the Amazon Labor Union

In November, U.S. District Court Judge Diane Gujarati issued an injunction against Amazon directing it “to cease and desist from discharging employees, and from engaging in any like or related conduct, in retaliation for employees engaging in protected activities,” according to an NLRB press release.

“Organizing is hard work and nobody said it was going to be easy,” Smalls told City & State. “We are grassroots, we are brand new, and we are going up against a trillion-dollar company. They are breaking the labor laws every day and getting a slap on the wrist.”

Meeting the moment

The COVID-19 pandemic has changed employees’ relationship with work, including sometimes where they work, and how much they earn. Low-income workers have received historic wage increases since March 2020. And union workers earn more and are more likely to have health insurance compared to their nonunion counterparts. According to a recent Gallup poll, Americans in the past two years have approved of unions more than any time since 1965. And overwhelming majorities are siding with workers in the Hollywood writers strike. So why isn’t Big Labor making more gains in this unique moment of support for unions?

“We have a golden opportunity right now with a federal government that’s more pro-union than we have seen in a long time – we have low unemployment – so people (are) a little bit less scared than they normally are and we have a lot of interest in unions right now, but I don’t think the union movement has gone all-in,” Freeman told City & State. “There are a few unions doing a lot of organizing but a lot of unions are doing very little. You just don’t see the kind of commitment to seize the moment that I think it would take to turn things around.”

Smalls, who has criticized longtime labor leaders for their ineffectiveness, said, “There are a lot of accountability issues – the labor laws in this country are still weak. We drafted a bill in New York state the Warehouse Worker Protection Act with (state Sen.) Jessica Ramos but that was one small step. We’ve got a lot of work to do. Big labor established unions – the labor leaders got to do a lot more than they have been doing. That’s the bottom line.”

Smalls continued: “There’s a lot of people who have been in the game a good deal longer than our labor union. We’ve only been here one year, and the expectations for our union were just ridiculous. What have the leaders of the labor movement and the elected officials been doing for the last 40 or 50 years?”

The union leader said he was glad to see Starbucks former CEO Howard Schultz brought before Congress to testify about his company’s tactics, and he applauded U.S. Sen. Bernie Sanders of Vermont to investigate Amazon’s worker safety and labor record.

“But it’s still not enough,” Smalls said. “Union density is still on the decline. … The only way we are going to change that is by changing these labor laws and make it easier to join a union.”

Ramos, chair of the state Senate Labor Committee, told City & State she believes Albany has a key role to play in helping unions increase their membership.

“What we can do legislatively is certainly pass laws that will make it easier to organize,” Ramos told City & State. “And we’ve done that by passing our bill to ban these captive audience meetings in both the Assembly and Senate chambers, and we are waiting for Gov. (Kathy) Hochul, hopefully before Labor Day, to sign this measure into law so that workers are not forced to endure anti-union propaganda and the intimidation that comes along with it so that they can freely organize.”

Ramos believes that labor law enforcement could be improved “with more stringent penalties, for example, taking away a license to do business if you are not able to do it responsibly, and human ethics come into play ensuring that an employer is treating workers as they should be.”

Better strategies

Since union membership continues to decline nationwide – and as companies ramp up their aggressive union-busting tactics – it’s clear that unions need new approaches to the problem of gaining new members.

One of the standout unions that does continue to expand is 32BJ SEIU, which is headquartered in New York City. Its 170,000 members are concentrated in the building services sector up and down the East Coast. 

Pastreich said in 99% of his union’s organizing drives, they don’t get bogged down in the election process but rather go for voluntary recognition by the employer.

That means nurturing local organizing drives with a “multipronged” political and public relations strategy backed up by the heft of their parent organization, the Service Employees International Union, which has over 2 million members across the country.

In the New York City region, 32BJ SEIU has made major gains for airport workers through targeting the Port Authority of New York and New Jersey. By pressuring the governors of both states, as well as their respective legislatures, they’ve gotten real results for the vast army of thousands of airport workers. Now, these workers who are employed by subcontractors and do things like clean the planes enjoy a $19 minimum wage, guaranteed days off and health care coverage.

For Transport Workers Union International President John Samuelsen, legislative remedies, while important, were secondary to what he told City & State had to be labor’s core mission of aggressively organizing workplaces from the ground up.

“Trade unions need to fight, and they need to organize,” Samuelsen said. “They need to stop their reliance on the Democratic Party and their reliance on legislation – that’s not to say that the trade unions shouldn’t have an advanced political and legislative agenda – they absolutely should – but the entire success of winning collective bargaining agreements is predicated on a fightback strategy.”

Samuelsen’s aggressive approach has included pursuing bargaining units after employers have tried to sell off or privatize parts of their operation to escape a unionized workforce.

“That’s what we are doing in Miami right now – our Miami Transit Local 91 runs Miami Transit, rail side and bus side, and some routes have been outsourced to private companies over the years, and we are organizing those companies right now,” Samuelsen said. “When we do that, we will raise the standards for the outsourced operators and make it as unproductive as possible for the private sector employers to get into the transit game in Miami.”

Samuelsen said that kind of aggressive strategy should be extended beyond traditional blue-collar trade union operating titles to include pursuing tech and white-collar workers. “TWU Local 100 has gone beyond the traditional operating titles including staff analysts, and we have expanded to organize all the new white-collar technology titles that have come along in the last 20 years,” Samuelsen said.

While the labor movement often delineates itself between public sector and private sectors, Samuelsen sees that as self-defeating.

“So, TWU is a quintessential example of a union that’s organizing simultaneously the public and private sector, and they have had tremendous growth in both sectors over the last 15 years,” Samuelsen said. “Forget about what you think historical jurisdictions might be – we want to organize workers. The more that we organize – the bigger the local or the international union thumbprint gets – the more power each individual worker has. There’s incredible synergy in that.”

Pastreich added that it’s not just about countering the “anti-union campaign while you are organizing. Ultimately, it’s about changing the power dynamic – it’s giving workers, whether it’s at a single site or a group of workers in an industry like airport workers – it’s giving them the power, the voice to make change that puts that group of workers on a par to sit face-to-face in a real way with a group of employers they are bargaining with.”