Even when employers break the law, not much happens.
When asked “why now” — why this moment for people to come together, to brave the risk of getting fired, the strain of psychological warfare in the workplace, to face the basic perils of union organizing — Kate Suisman posits it’s the result of a slow, steady decline. Over time, working conditions worsened until they were bad enough that a new generation arrived in the workforce and knew their jobs wouldn’t give them a viable future.
“It became like a lobster that is boiling slowly in water: we acclimated to it,” Suisman said. “It just became so much clearer that your average job, your average entry-level job, was really lacking in those basic promises that we used to think a job involved.”
Suisman is an attorney at the Northwest Workers’ Justice Project, a nonprofit organization providing free legal services for low-income populations, and she says the pandemic exacerbated conditions that, for many, were already difficult. Thousands faced layoffs or pay cuts with little to sustain them, thousands more continued to work despite safety risks. Workers started organizing, a trend that led to last fall’s “striketober” — a month that saw the biggest nationwide bump in union activity in recent memory — and efforts to organize within large companies. In the estimation of cost vs. gain, the risk of unionizing was eventually less than the vulnerability of living in poverty.
“If you enter the job market and you’re working at minimum wage, you don’t have job security,” Suisman said. “You don’t see a way to improve your workplace because there isn’t a union, then you start looking for solutions.”
But while union efforts begin anew and some successes are celebrated, they are also hard-won. Pushes to unionize often fail, because employers can deploy a range of extreme union busting tactics, and even break the law, with little repercussions. Even as working conditions get worse and the nation faces unprecedented wage instability, the laws in place give employers the upper hand.
When the solution is a union, employers almost uniformly fight back. They fight hard, and the stage is set for them to do so. There are few regulations enforced curtailing an employer’s efforts to crush union efforts. When they do violate a law, there is almost no meaningful repercussion.
“It just became so much clearer that your average job, your average entry-level job, was really lacking in those basic promises that we used to think a job involved.”
“There’s virtually no penalties for an employer who violates the law,” Gordon Lafer, professor at the University of Oregon’s Labor Education and Research Center, said. “There’s no fines. There’s no ‘you lose your license, you lose your right to bid on government contracts, jail time’...there’s none of that. So the incidence of illegal activities, including firings, are unbelievably high.”
In theory, employees have the right to organize, Lafer said. In practice, employers have a lot of power to prevent that from happening. They also have a lot of capital. According to the Economic Policy Institute, employers spend approximately $340 million annually on union busting.
Even preceding recent union efforts, policies designed to prevent employee collaboration have become commonplace, Suisman says. Policies such as forced arbitration agreements, extreme secrecy around job conditions, and efforts to keep workers from sharing information or acting together. Over time, she said, lawmakers further eroded working conditions, giving bosses more tools while taking tools from workers.
During pushes to unionize, for instance, management can and does force people to attend anti-union meetings, where they will see anti-union presentations or watch videos. They can require employees to attend, and if they refuse, management can fire them.
“They can tell employees ‘you have to come and I don’t want to see you raise your hand or open your mouth to ask a question. And if you do, you’re going to be fired,’” Lafer said. “And that’s legal.”
Management also controls the workplace environment, often deploying tactics like plastering workplace walls with anti-union posters or bringing in flat-screen TVs running 24/7 anti-union videos, all actions pro-union employees are forbidden to take.
“It’s as if either the Democrats or Republicans could force everybody in America to watch their propaganda film once a day, and the other side would never be able to say anything or ask questions,” Lafer said.
Companies and employers, fearing the profit losses that come with paying employees a living wage and providing things like health care, will move aggressively to stomp out union activity. The general fear is that when one place unionizes successfully, the trend will continue and unionizing efforts will spread — a concern validated by the ongoing Starbucks’ labor movement. To curtail this kind of momentum, companies try to scare employees out of unionizing, by doing things like saying that if employees unionize, they will have to shut down—even if it isn’t true—or by lying or misleading employees about unions themselves. For known organizers, they may cut work hours, rearrange their work shifts or other strategies to try and intimidate them into abandoning their effort. And sometimes they fire people, even though it’s illegal.
“Essentially, it’s always rational for employers to fire two or three people in order to scare 200 or 300, and it happens incredibly frequently,” Lafer said. “This is the only area of law that I know where there is no possibility in the law for punitive sanction.”
Employers were charged with violating federal law in 41.5% of all National Labor Relations Board-supervised union elections in 2016 and 2017, with at least one unfair labor practice charge filed in each case.
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“There’s many, many cases where at the start there’s like 80% of people signing statements saying ‘I want a union.’ And then a month later, there’s an election, and they lose the election,” Lafer said. “And the reason they lose is because people get scared of losing their jobs.”
Even after a union is recognized successfully, employers can still delay and drag out the process for getting a first contract signed.
Most Americans support unions. In 2018, the Economic Policy Institute found that 55% of people surveyed have a favorable opinion of unions, while only 33% saw them in a negative light. Studies also show many American workers want to be part of a union: a 2017 survey showed that roughly half of non-managerial workers — 58 million people — would vote to be in a union if they had the opportunity.
But that same year, only 50,000 employees were able to secure union status — less than 1% of those who want to be in a union. Union rates in the United States have consistently fallen in the past few decades. In 1983, a fifth of all wage and salary workers were union members. By 2017, that number fell to a record low of 10.7%.
While union rates have fallen, wages and worker protections have, too. Unionized workers’ wages are generally 13.2% higher than their nonunion counterparts, and they typically have better benefits and access to healthcare. Since 1978, around the time when unionizing rights began to erode, CEO compensation has grown 940% while employee compensation has risen only 12% — and that was before the pandemic.
Efforts to reform labor law typically fail. In March 2021, house Democrats passed the PROAct, a bill that would strengthen protections for workers. Introduced by Rep. Robert Scott, (D-Va), it was billed by some as the most significant labor law reform since the National Labor Relations Act, but the bill stalled in the Senate where Republicans held up the vote and it’s expected that the bill won’t move forward.
“Essentially, the PROAct, or anything else in congress is DOA,” Lafer said.
The lack of legislative progress is owed to moneyed interests using their political sway to successfully freeze up legislative efforts restoring union organizing rights.
Biden’s waylaid Build Back Better Act has stricter penalties for labor law violations, but the bill could change and has yet to be passed.
In response to protracted labor rights gridlock, in September last year, Jennifer Abruzzo, Biden’s National Labor Relations Board (NLRB) general council appointee, pledged to revive the Joy Silk doctrine, which required employers to recognize unions unless presented with a “good-faith doubt” the union secured the backing of a majority of employees.
“For two decades following the Joy Silk decision, the NLRB issued bargaining orders whenever an employer’s refusal to bargain and insistence on an election was in bad faith,” Abruzzo tweeted. “But around 1970, the NLRB abandoned the Joy Silk doctrine.”
But the process for reviving the Joy Silk doctrine is a bureaucratic lift that could take years, and one that could be upended by the appointee of an incoming presidential administration.
In the meantime, workers press on, and the push for unions seems to be gaining momentum. Amazon workers in Bessemer, Alabama ultimately voted against unionizing in April last year, but workers in other locations revived the effort and filed for union membership in December. In recent weeks, Starbucks workers gathered unprecedented momentum in unionizing efforts. Following the flagship establishment of a union in Buffalo, branches across the country are taking up the union fight. So far, at least six branches in Oregon have announced union drives.
In recent years, other Oregon workplaces have pushed for workers rights and succeeded: at Crush, a well-known queer bar in Portland, the staff organized a collective in response to mass layoffs and employees unionized to protest safety conditions. Other Portland businesses, like Voodoo Donuts and Burgerville, weathered the toil of organizing and established employee unions securing them better working conditions and wages.
It’s an effort they see as wins for workers in general. In a celebratory tweet in December, the Burgerville Employee Union proclaimed its victory as one belonging to workers outside their union.
“With a membership turnout of 75%, workers voted 93% in favor of ratifying our First union contract! Workplace democracy wins!,” they tweeted. “This victory belongs to the Oregon Labor Movement and everyone who fought with us. You all gave us the courage to continue to fight one day longer.”
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