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A corroded American collective bargaining regime had already been exacerbating worker struggles and economic inequality since the 1980’s, but its toll has grossly worsened during the COVID-19 pandemic. While “essential” low-wage workers—disproportionately women and people of color—have provided in-person services to the public at great health risk, many of them have worked without paid sick leave and protective gear. Some have even been fired for vocalizing concerns about inadequate workplace health and safety measures. These working conditions have starkly differed from some of the 10.5% minority of private sector workplaces that are unionized. In these workplaces, employees have been able to negotiate for paid sick leave, heightened health and safety measures, minimized layoffs and increased pay and benefits.[1][2] While the magnitude of these pandemic-specific challenges are the result of the decades-long decline in employee bargaining power and representation in private sector workplaces, the higher-stakes consequences induced by the pandemic have been increasing worker demand for unionization.[3]

In part owing to this tragic juncture, federal labor policy could shift under the incoming Biden administration, which has adopted proposals that would strengthen unions and has committed to passing the worker-empowering Protecting the Right to Organize (PRO) Act.[4][5] A Democratic-majority National Labor Relations Board (NLRB) could also, at least temporarily, pivot the case law in a more worker-friendly direction. But even if girded by a more protective legal regime, workers will need to grapple with another massive internal challenge, one that arguably rivals the legislative process with its bureaucratic hurdles: the very process of organizing. Labor organizing technology could be the solution.

The initial organization process is governed by the National Labor Relations Act (NLRA) and typically consists of the following steps: workers informally discuss the idea of unionizing amongst themselves; contact a local or national union to represent their would-be union; and, after strategizing with the umbrella union, hold a “card check” election whereby at least 30% of workers must sign authorization cards in support of unionization. If the NLRB finds the card check genuine and uncoercive, the agency will coordinate an employee-wide election with the employer.[6] Majority rules; if most employees favor unionization, the NLRB will officially recognize the union and mandate collective bargaining over a negotiated contract between the employer and employees.[7]

Challenges begin at the informal pre-organizing discussion stage. NLRA § 7 only permits employees to discuss unionization in non-work places during non-work times. Especially in an era where worker commutes and geographic spread are common, this naturally limits opportunities for worker deliberation. Gauging interest in external union representation, and eventually contacting employees to discuss unionization with umbrella union representatives, are both consequently impeded. Starting in 2007, a Bush-Board-decided, Obama-Board-overturned and Trump-Board-reinstated rule has flip-floppingly prohibited employees from using the employer’s email system and information technology resources for labor organizing activities.[8] The Board decision permitting email system use, Purple Communications, noted that “[e]mployees’ need to share information and opinions is particularly acute in the context of an initial organizing campaign.”[9] It recognized “a sea change in the nature of workplace communications” since adoption of the NLRA as workers have moved further away from their workplaces, and determined that this should necessitate a limitation on the employer’s property interest in its email system for the sake of protecting NLRA worker rights.[10]

Another longstanding impediment to initial organizing communications is the difficulty of obtaining worker contact information, both for the purpose of registering employees for card checks and facilitating opportunities for workers to collaborate and talk. Increasingly, large employers like Amazon have preyed on these fears by implementing systematized surveillance technology to chill organizing interest.[11] While the pandemic has deepened the need for worker protections, it has also spurred the use of technology to help workers organize.[12] In the absence of traditionally in-person opportunities for employee outreach, discussion fora and voter registration, workers have increasingly turned to existing technologies to organize with better coordination, privacy and anonymity than was often possible even in the pre-pandemic workplace.[13] Some workers at Amazon, and at less worker-centralized gig economy companies like Shipt and Instacart, had been using Facebook groups and securely encrypted chat apps, like Signal and Telegram, before COVID-19. The pandemic has only increased the practice. The expedited normalization of technology use in labor organizing and work in general could potentially revolutionize post-pandemic organizing. In a 2015 proposal, the Century Foundation predicted that if virtual labor organizing took off, it could “transform the way in which the nation’s top labor unions deploy their organizing capabilities. Rather than just engaging in resource-intensive organizing, they could become wholesalers of union formation, investing in large-scale promotion of an online resource, backed by call-centers and a significant network architecture standing behind this powerful new tool.”[14] For workers themselves, virtual organizing would be efficient and theoretically secure from employer interference and retribution. It could also help simplify complex choices over which umbrella union to join and potentially facilitate more large-scale regional and national organizing.

The proposal groundbreakingly suggested a “new, state-of-the-art” virtual platform specifically designed for labor organizing use by unions and employees.[15] The platform “would provide an interactive, step-by-step process so that employees know what to expect at each stage, and how to handle hurdles,” and would help employees engage with each other, form organizing committees and campaigns and file NLRB petitions and forms. The platform would also allow organizers to input employee contact, job function and union interest information, facilitating employee coordination and discussion. By coding these job functions and other features for legal factors that the NLRB uses in certifying card-checked unions, the platform could help maximize the odds of certification. Towards helping certified unions, the platform would also provide model agreements on issues like “wages, benefits, scheduling policies, and health and retirement plans.”[16]

But for now, some workers are trying to specialize existing digital platforms for organizing use. One Amazon employee in California, John Hopkins, is developing a virtual organizing platform to try and unionize his distribution center coworkers using Zoom’s encrypted Keybase.[17] To access the platform, “workers will have to create a decentralized identifier, similar to a bitcoin address, that’s recognizable to others who’ve joined the network but appears anonymous to anyone who isn’t authorized.” Hopkins hopes that given the NLRB 2015 decision permitting workers to digitally sign authorization cards, his platform could be put to that use throughout the organizing process.[18]

The pandemic is less a “sea change in the nature of workplace communications” than it is an alarm bell. Virtual labor organizing tools have the power to help protect the essential needs of low-wage essential workers, introducing their own sea change while the tides of party and policy flow.

Footnotes

[1] https://www.epi.org/publication/why-unions-are-good-for-workers-especially-in-a-crisis-like-covid-19-12-policies-that-would-boost-worker-rights-safety-and-wages/

[2] https://www.hamiltonproject.org/papers/the_shift_in_private_sector_union_participation_explanations_and_effects?_ga=2.80034135.1512540835.1607711201-1635063323.1606194053

[3] https://onlinelibrary.wiley.com/doi/10.1002/mare.30627

[4] https://joebiden.com/empowerworkers/

[5] https://www.politico.com/news/2020/10/09/unions-biden-administration-426880

[6] https://1.next.westlaw.com/5-501-0280?VR=3.0&RS=cblt1.0&__lrTS=20201212224402319&transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

[7] Id.

[8] https://www.jdsupra.com/legalnews/nlrb-overturns-obama-era-initiatives-a-62972/

[9] Purple Communications, 361 NLRB 1050 (2014). https://www.nlrb.gov/case/21-CA-095151

[10] Id.

[11] https://www.vice.com/en/article/5dp3yn/amazon-leaked-reports-expose-spying-warehouse-workers-labor-union-environmental-groups-social-movements

[12] Id.

[13] https://www.cnbc.com/2020/10/24/how-amazon-prevents-unions-by-surveilling-employee-activism.html

[14] https://tcf.org/content/report/virtual-labor-organizing/?agreed=1

[15] https://tcf.org/content/report/virtual-labor-organizing/?agreed=1

[16] https://tcf.org/content/report/virtual-labor-organizing/?agreed=1

[17] Supra, note 13.

[18] Supra, note 13.