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labor What to Know About Your Rights to Unionize

As more young people find themselves stuck in precarious jobs with variable hours and benefits, some are turning to unions to help secure their rights.

Hands holding Kickstarter United OPEIU buttons
Washington Post

While overall union membership rates have declined over the past three decades, the youngest cohort of U.S. workers have injected the workforce with renewed energy for organizing. In 2017, more than 75% of the net new union members added to the ranks industry-wide were under the age of 35, according to the Center for Economic and Policy Research.

As more young people find themselves stuck in precarious jobs with variable hours and benefits, some are turning to unions to help secure their rights. Just look at the recent swelling of support for unionization in “new” industries such as digital mediawhite-collar techand nonprofits.

Most employees in the private sector are protected by the National Labor Relations Act, enacted in 1935 “to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices,” according to the National Labor Relations Board. But the revitalized labor movement has seen some employers being accused of working to dissuade union participation.

This summer, Barstool Sports founder David Portnoy lashed out on Twitter with a public disavowal of unions, while the the Marciano Art Foundation and Kickstarter management were both accused of unfair labor practices, with charges filed with the NLRB, following the timing of employees’ terminations following their unionizing efforts this fall. More recently, executives at Hearst Magazines have reportedly pressured staffers who have voted to unionize to withdraw their request. And Google has reportedly hired an anti-union consulting firm to provide guidance on responding to employee walkouts and other expressions of dissent.

These burgeoning unionization efforts — and management’s responses to them — inspired Teen Vogue to talk to union experts and organizers to determine what you need to know about your right to organize your workplace and how your bosses might try to stop you, no matter where you work.

The National Labor Relations Board recognizes two ways for interested employees to form a union

If at least 30% of workers sign cards or a petition saying they want a union, the NLRB must conduct an election. If a majority of employees vote in favor of organizing, the NLRB will then certify the union. That’s one method of achieving union representation.

Alternatively, employers have the option to voluntarily recognize a union if the majority of employees indicate they want it to represent them, usually by means of signed union-authorization cards, according to the NLRB.

A press release from the Office and Professional Employees International Union (OPEIU) obtained by Teen Vogue claimed that Kickstarter management preemptively declined to voluntarily recognize its employees’ burgeoning unionization efforts earlier this year, and officially refused the request on October 2, calling for an election instead.

In a phone interview with Teen Vogue, Kickstarter senior communications director David Gallagher offered an explanation for why the company chose this path. He said that supervisors — or any individual with the authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees” — are forbidden to engage in organizing activity under the NLRA, and that two of the Kickstarter staffers involved in the original organizing committee would be considered supervisory employees.

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Gallagher called a secret ballot “the most democratic way to make sure that in fact this is what the staff wants.”

In a recent statement to its creators and backers of Kickstarter projects, Hasan, the company's CEO, described “the union framework” as “inherently adversarial.”

The OPEIU release called Hasan’s language “another page from the well-traveled anti-union playbook — used in office buildings, in retail stores, on the factory floor, in hospitals and other workplaces across the nation — that seeks to ‘otherize’ employees courageous enough to publicly state their preference for union protection, even as management attempts to undermine and intimidate.”

According to Ruth Milkman, a sociologist of labor and labor movements and Distinguished Professor of Sociology at the CUNY Graduate Center and at the CUNY School of Labor and Urban Studies, employers have found various ways to tilt the playing field in their favor when elections are in play. She points to tactics like in-person efforts to dissuade employees from unionizing, or contesting the composition of a bargaining unit.

Alternatively, employers have the option to voluntarily recognize a union if the majority of employees indicate they want it to represent them, usually by means of signed union-authorization cards, according to the NLRB.

A press release from the Office and Professional Employees International Union (OPEIU) obtained by Teen Vogue claimed that Kickstarter management preemptively declined to voluntarily recognize its employees’ burgeoning unionization efforts earlier this year, and officially refused the request on October 2, calling for an election instead.

In a phone interview with Teen Vogue, Kickstarter senior communications director David Gallagher offered an explanation for why the company chose this path. He said that supervisors — or any individual with the authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees” — are forbidden to engage in organizing activity under the NLRA, and that two of the Kickstarter staffers involved in the original organizing committee would be considered supervisory employees.

Gallagher called a secret ballot “the most democratic way to make sure that in fact this is what the staff wants.”

In a recent statement to its creators and backers of Kickstarter projects, Hasan, the company's CEO, described “the union framework” as “inherently adversarial.”

The OPEIU release called Hasan’s language “another page from the well-traveled anti-union playbook — used in office buildings, in retail stores, on the factory floor, in hospitals and other workplaces across the nation — that seeks to ‘otherize’ employees courageous enough to publicly state their preference for union protection, even as management attempts to undermine and intimidate.”

According to Ruth Milkman, a sociologist of labor and labor movements and Distinguished Professor of Sociology at the CUNY Graduate Center and at the CUNY School of Labor and Urban Studies, employers have found various ways to tilt the playing field in their favor when elections are in play. She points to tactics like in-person efforts to dissuade employees from unionizing, or contesting the composition of a bargaining unit.

Milkman said the firing of people who are known to be active with union organizing efforts is a commonly used union-busting tactic, even though “it’s completely illegal.”

“This happens on a daily basis in the United States and it's completely prohibited by the National Labor Relations Act,” Milkman told Teen Vogue in an interview. “And yet the penalties tend to be quite modest. And so…for many employers it's just the cost of doing business.”

“There is a huge built-in incentive to the employer to get rid of leading union adherence, and I don’t think that’s any different today than it was a number of years ago,” Young said. “And I don’t think it’s any different whether you’re talking about a paper mill or a newspaper or a digital media organization; the incentive is always there and employers remain willing to do that, regardless of the industry. There’s no disincentive.”

Employers can land in hot water for urging their staff not to unionize

In August, the founder of Barstool Sports took to Twitter to respond to news that employees of sports, pop culture, and technology blog The Ringer were making efforts to organize, by reaffirming his openly hostile attitude toward unions.

Portnoy linked to an article he wrote for Barstool when Gawker employers were in the midst of their own unionization efforts back in 2015.

“BAHAHA! I hope and I pray that Barstool employees try to unionize,” Portnoy wrote at the time. “I can’t tell you how much I want them to unionize. Just so I can smash their little union to smithereens. Nothing would please me more than to break it into a million little pieces.”

In response to Portnoy doubling down on his article on Twitter, Rafi Letzer, a staff writer at Live Science, invited any Barstool employees interested in learning more about the unionization process and “how little power your boss has to stop you” to slide into his DMs. Portnoy responded with an unambiguous message: “If you work for @barstoolsports and DM this man I will fire you on the spot.”

When Teen Vogue reached out to Portnoy to see if he had further comment on his tweets being perceived as antiunion, he said, “It’s called comedy.”

Just as employees have turned to social media in an effort to streamline their organizing efforts, some employers have coopted social platforms to advance their own interests.

Soon after Portnoy’s Twitter posts, David Rosenfeld, a labor lawyer, filed a grievance with the NLRB, according to the Washington Post, alleging that Barstool, “through its crazed president, Dave Portnoy, has threatened to discipline employees on account of Union and/or protected activity. The Charging Party seeks as relief that Mr. Portnoy be required to tweet and otherwise publicize his severe and sincere apology and to post the appropriate Notice on the public website.”

His goal was to extract an apology, according to the Post, and the allegations triggered an investigation. According to the NLRB’s case status page, Rosenfeld’s case is still open, as are three others filed against Barstool Sports since August 13.

Portnoy had responded to Rosenfeld’s allegations with a Tweet that read, among other things, “go f—k yourself.”

Congresswoman Alexandria Ocasio-Cortez (D-NY) and others had called the original tweets likely a violation of the NLRA, which prohibits employers from interfering with, restraining, or coercing employees with relation to their “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

“This is kind of like a chess game on the part of the two sides,” Voss said. “[Certain employers are] taking all their old motivation to break unions and prevent them from forming and they're applying it now to new media.”

Editor's note: This post has been updated to include comment from Kickstarter's management.

Want more from Teen Vogue? Check this out: What to Know About Your Rights as a Worker