The Union Organizing Wave and Union Busting

By Hailey Simpson 

The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”

It’s 2023 and it feels like the US is in a union organizing wave. Politico reports a 53% uptick in NLRB petitions in 2022, and a 2021 Gallup poll shows that 68% of Americans approve of labor unions, the highest since a 71% approval in 1965. However, the same Politico article cites a Bureau of Labor and Statistics report that even amidst major union drives, there was a slight dip in union membership from 2021 to 2022, from 10.3% to 10.1%. Turning union organizing into union membership lies a problem that is becoming highly visible in the advent of social media: union busting. 

Union busting tactics, whether or not they affect union organizing outcomes, create a culture of hostility around unionization that hampers workers’ rights to organize. Three watershed unionization efforts in the last two years have highlighted companies’ union busting tactics ongoing today: Amazon, Starbucks, and most recently, Bandcamp. 

In 2021, Amazon workers at a Bessemer, Alabama warehouse made headlines for its union organizing, and particularly for its NLRB election in which organizing workers allegedly faced heavy union busting from Amazon corporate. The April 2021 election defeated the union, but it was granted another election due to NLRB findings of Amazon tampering. One alleged tactic was that a USPS mailbox was installed in front of the warehouse at the direction of Amazon. This gave the appearance of making it easier for voting workers to drop off NLRB ballots, but given ties to Amazon management, had a potential implication that Amazon was trying to control the election’s outcome. Unfortunately for the union, the second election failed again, although the margin of defeat was much smaller than before. Perhaps with Amazon having to tread more lightly on the union busting front, the second election might have had a more organic outcome. But, the damage of Amazon corporate’s tactics might have already been realized. 

Elsewhere at Amazon, Chris Smalls led an April 2021 walkout at a Staten Island warehouse over concerns about the company’s COVID-19 safety protocols. He was fired for alleged social distancing violations, but the underlying subtext is that Amazon was retaliating due to his organizing, a common union-busting tactic. Now, Smalls is now focused on organizing the Amazon Labor Union, which led to the first successful Amazon union at the 8,300 person warehouse. 

A parallel union movement in 2021 was that of Starbucks. Workers at Buffalo, NY Starbucks stores organized the first Starbucks union. The movement has continued to grow at a rapid pace, as there are now more than 300 unionized stores in the country. The organizers face many union busting tactics by Starbucks brass, including surveillance and intimidation tactics as well as Starbucks offering benefits for non-union stores. Additionally, Starbucks has employed a tactic that follows union members even after a successful union vote: refusing to negotiate with the union for a contract. 

Earlier this month, the US Labor Board alleged that Starbucks refused to negotiate in good faith with 144 union cafes. This stalling tactic works to effectively delay negotiations and prevent a contract from being reached, and takes the power of the union away from workers by continuously denying this contract. 

Finally, a union effort that is fairly new and still ongoing is that of Bandcamp, the music streaming and sales platform popular among independent musicians and music fans. A move that increased their goodwill among users was their Bandcamp Fridays, wherein Bandcamp waived their revenue share on all sales each first Friday of the month. Last year, Bandcamp was purchased by Epic Games, and in the advent of this corporate shift, Bandcamp workers announced they were organizing a union, Bandcamp United, on March 16th of this year. Just past a month later, Bandcamp has refused to voluntarily recognize the union and hired Foley & Lardner LLP, who are already engaging in union busting tactics like trying to delay the NLRB election and trying to exclude certain workers from the bargaining unit. 

Supporters of the union will be waiting with bated breath to see if these explicit tactics from management will have an effect on the union election, as the NLRB mailed ballots this past week on April 27. 

As illustrated in these 3 union drives, union busting by company management can have a chilling effect on union elections as organizers face an uphill battle to even win a union, let alone a contract. If these tactics are not reined in, they pose a big challenge in any worker’s right to organize a union. 

Reflections from Charles Joseph

Union organizing has historically played a key role in extending workers’ rights. As Haily Simpson argues, even ineffective union busting has a chilling effect on employees. Will workers who faced union busting tactics from their employer be less likely to report wage theft or retaliation? And after seeing the limits of enforcing unionization rights, will employees try to challenge a wrongful termination?

Protecting workers goes beyond passing laws. It also requires enforcement and education. Today’s union organizing wave has shown how far corporations will go to prevent unionization. In the future, organizers must learn to anticipate union busting tactics so they can advocate for workers.

Hailey Simpson holds a bachelor’s degree from the University of California, Berkeley. In the fall, she will join the class of 2026 at the Boyd School of Law at the University of Nevada Las Vegas. Simpson plans to concentrate in workplace law. Contact Simpson on LinkedIn. 

Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $140 million for clients.