Last week, tech workers fighting for a union at the Times virtually walked out in protest over management’s continued anti union tactics, the first collective action of its kind in the tech industry.
The day before the walkout, the union’s organizing committee proposed a half-day work stoppage and just hours later over 200 workers, roughly a third of the total bargaining unit, committed to the strike.
On the day of the walk out, worker participation jumped to over 50% of the bargaining unit. Over 300 workers committed to this militant collective action less than 24 hours after hearing the proposal.
What set the stage for this level of commitment from workers? What have workers endured at the Times over the course of the drive? How did management’s anti union tactics spur this action and how did organizers mobilize such a significant number of workers to take this impressive stand for workers rights? Collective Action in Tech put together a deep dive into this moment for the tech industry, how workers pulled it off, and why this is a turning point for the movement.
A Historic Collective Action in Tech
Labor stoppages like strikes and walkouts are our most powerful leverage. Organized labor and the larger tech worker community have been using this tactic for decades. An early example is the 1992 Strike at Versatrex when Latina women manufacturing circuit boards went on strike over low wages and healthcare coverage. One of the industry’s most culturally influential strikes was carried out by thousands of Google Workers over management’s mishandling of sexual harassment.
But this collective action from the NYT Tech Guild is characteristically different from the walkouts and strikes that sowed the seeds for tech workers’ militant foundation in the past. The NYT tech worker walkout is a tonal shift for the movement. This is the first instance of unionizing white collar workers stopping work over management’s conduct in the process of unionization. All previous work stoppages from white collar tech workers at internet companies were centered on specific demands like workplace safety, pay equity, unethical application, and environmental responsibility. This might be the moment tech workers embrace labor militancy for the express purpose of securing a permanent seat at the table.
Why Did NYT Tech Workers Walk Out?
This union has been a long time coming. After years of organizing, NYT tech workers have been able to secure and sustain 70% of union support from eligible coworkers. Engineers, designers, data scientists, and other tech workers who bring the digital products of the Times to life were ready for a seat at the table.
Many workers believed the union had the strategic advantage of working at a company with a progressive brand that proudly publishes editorial pieces advocating pro-union labor law. In the beginning, there was a glimmer of hope that management might follow the guidance of their own editorial and voluntarily recognize the union.
The most significant change in the bill is known as a majority signup, which would allow employees at a company to unionize if a majority signed cards expressing their desire to do so. Under current law, an employer can reject the majority’s signatures and insist on a secret ballot. But in a disturbingly high number of cases, the employer uses the time before the vote to pressure employees to rethink their decision to unionize.– The Right to Organize, NYT Opinion, March 6, 2007
To the surprise of many workers, management has leaned into the anti-union tradition. Leadership began to use union busting tactics early in the drive, before the campaign was even public. Shortly after management at the Times got wind of organizing across the company’s tech workers, leadership set a familiar plan in motion: the same plan that every company uses to squash a union drive.
Union Busting Tactic #1: Changing the CEO
One of the most common and easiest ways to pull momentum from a union drive is to swap out management’s most prominent figurehead, the CEO. In September 2020, the Times brought in a long time staff member for this role. Usually, the new leader is a well-liked member of management who can bring a softer hue to the leadership team. This more popular leader gives management two rhetorical advantages. First, management makes the case that this leader will be different and that this “changes everything.” In reality, the power structure and anti union stance of the company remain unaltered.
Second, new leaders will often ask for more time to carry out a new vision and demonstrate they are committed to a pro-worker leadership style. No matter how well liked or effective this new leader is, the tactic is a calculated and deliberate move to bust the union which ultimately disenfranchises workers. With this plea for patience and good faith from workers, leadership buys more time to carry out a more devastating and nuanced anti union strategy.
Union Busting Tactic #2: Refusing Voluntary Recognition
Historically, the more time management has between the moment they become aware of a union drive and the recognition of that union, the more damage is done to the organizing effort. This is because management has more money, time, and resources to dissuade workers from unionizing. US labor law also favors companies in this process by allowing management to carry out their anti-union campaign on company time while forbidding workers to do the same.
The most pro-union path for gaining recognition is voluntary recognition, a process that can take place outside of the NLRB and bypass the prescriptive (and often lengthy) legal timeline. In a nutshell, workers present management with a request for voluntary recognition and, if management agrees to this path, a third party verifies that all the union signatures are valid. In the case of NYT tech workers, a majority of workers from the bargaining unit approached management for voluntary recognition, but management still refused.
From an earlier editorial published by the company, it’s clear that Times management understands that workers seeking recognition can be forced into a disadvantage if the employer refuses to voluntarily recognize the union. Pushing workers into the lengthier NLRB election process is commonly used as a stalling tactic for management to secure more time to dissuade workers from voting yes.
When management refuses to grant voluntary recognition, often they position this decision as a pro-worker action and the necessary preservation of a democratic process. However, what management is really doing is cleverly undermining the legitimacy of signed union cards and presenting the NLRB ballot election as the only fair process for measuring union support.
In a piece written by the union and published on Action Network, workers describe management’s refusal to honor the demands of their tech workers:
A supermajority of the 600 tech workers of The Times have announced our union support publicly, but Times management has declined to voluntarily recognize us and has denied us a swift and accessible online vote through the AAA.
After management officially refused to recognize the union, workers immediately kicked off a public pressure campaign in an attempt to encourage management to reconsider granting voluntary recognition. In recent tech organizing, once management has announced they will not grant voluntary recognition, no amount of public pressure has succeeded in reversing the decision. Kickstarter United was the first tech union of its kind to ask for voluntary recognition and was repeatedly denied by adversarial management.
The most recent example of this anti-union tactic is the Mapbox Workers Union that was forced into an election under the strain of management’s harsh anti-union campaign. Delaying recognition of the union allowed management more time to dissuade workers from voting yes and successfully flipped nearly 30% of the bargaining unit with a barrage of anti-union rhetoric leading up to the election.
Even after a strong public pressure campaign from the NYT Tech Guild, it was clear voluntary recognition was off the table. The only way management would recognize the union is if they were legally obligated through an NLRB election process. On July 30th, 2021, workers in the NYT Tech Guild filed for an election overseen by the National Labor Relations Board.
Union Busting Tactic #3: Suppressing Support
Since learning about the union drive, Times management has expressly discouraged signs of union support among workers. Under US labor law, it is illegal to suppress displays of support for worker organizing. Workers have the legal right to talk about working conditions, including verbally and visually expressing opinions about an active union drive. This includes wearing a pro-union button to work, making the union logo your avatar, and flaunting amazing earrings like the NYT Tech Guild’s organizing committee member, Shay Culpepper.
In a Bloomberg piece from Josh Eidelson, management’s discouragement of pro-union images is described in detail and corroborated by workers:
Part of the complaint involves a late May meeting in which Times management ordered a group of product designers to stop using pro-union avatars and backgrounds in online services like Slack and Google Meet, according to Bon Champion, one of the employees.
With the help of the union’s national, the Communications Workers of America (CWA), NYT tech workers filed an unlawful labor practice (ULP) charge citing management’s illegal coercion and restriction of pro-union images posted by workers.
Organizers’ ability to encourage open support of the union in the workplace is one of the most critical elements of a successful union drive. The more workers see support for the union, the more likely they are to vote yes. When support for the union is erased from the workplace through management led coercion, management’s anti-union propaganda becomes even more effective.
Union Busting Tactic #4: Pushing For A Smaller Unit
After refusing to voluntarily recognize the union, on August 9th 2021, Times management moved forward with another classic union busting tactic: attempting to diminish the size of the bargaining unit.
The percentage of the total workforce united in a union directly affects the bargaining power of that union. Throughout labor history, management has attempted to shave down bargaining units by excluding eligible workers.
To shrink the size of the bargaining unit, management in tech usually targets workers who have titles that sound like managers but have no legally defensible power or responsibility that would categorize them as management. Workers who have roles such as team leads and project managers are popular targets because they sound like managers but typically have no actual hiring or firing power—the necessary criteria for managers as defined by the National Labor Relations Act. Times management has taken a more aggressive stance, seeking to exclude all workers outside of the title: Software Engineer. Excluding all designers, data scientists, analysts, and other legitimate tech workers from the unit would splinter the union and potentially sway the election in management’s favor.
If Times management successfully wins an NLRB hearing over the contested titles, this can result in a permanent change in how the NLRB defines a tech worker, potentially excluding everyone who doesn’t hold the title of Software Engineer. Gabriela C-C., a NYT Tech Guild member, commented on how she feels about sharing a union with her coworkers across different roles.
It’s important that workers beyond engineers be included in the bargaining unit because our work is so closely intertwined. Because of how closely we work, I feel a great sense of injustice when engineers receive greater privileges in the workplace. For example, under my department, remote work and working from home is flexible for engineers. At this time, project managers do not have the same flexibility, and I think they deserve the same flexibility because there is nothing inherent to their job that requires them to be in the office. When we press on the rationale for the different treatment, we find that we have more in common than not. And I think finding solidarity within the workplace among different roles opens the possibility to finding solidarity with workers of different industries or trades. I think many tech workers have come to believe our labor is different from traditional workers because our products are digital or because of quirky perks. This is wrong and has negative consequences within our own workplace and beyond.
Because of how young unions are at tech companies, this case could set a dangerous precedent of dividing software engineers from other tech workers.
This tactic of dividing workers has additional strategic value. Even if management fails to make a case for a smaller bargaining unit in an NLRB hearing, they will have bought even more time to bust the union. The hearing could take a few weeks to a couple months from initiation to verdict. In this time, it’s highly likely Times management will continue to suppress support for the union, spread anti-union propaganda, and undermine the union drive.
Union Busting Tactic #5: Polling Union Support… Oops
After management communicated to the union that they would be forcing workers into an election process, the union sent an open letter to leadership with two simple requests. First, workers asked for an election facilitated by the American Arbitration Association (AAA). This organization provides an online voting process that is usually speedier, giving management less time to coerce workers into voting against the union in the election. Second, workers asked management to refrain from initiating conversations about the union with workers—essentially asking management to stop interrogating workers about their position on the union. Usually managers will initiate conversations about the union drive in one-on-ones with subordinates to map the workplace and apply more precise pressure to workers on the fence.
Under current US labor law, management is allowed to track union support in a multitude of ways. If workers change their profile pics to the union logo, that can be tracked. If workers stand up at all-hands and express an opinion about the union effort, that can be tracked. If it’s clear a worker is good friends with an organizer, that can be tracked. Any unsolicited expressions of support or opposition for the union on company property can be tracked by management and inform anti union strategy. However, if management directly solicits a worker’s position on the union, then it is considered illegal interrogation.
|What can management ask a worker?|
|Legal||“Let’s talk about the union. We don’t feel the union is right for our company. I enjoy our direct relationship. Do you have any feedback for me on our working relationship or leadership’s direction?”|
|Illegal||“So how are you feeling about everything that’s happening? How are you feeling about the union drive? Did you participate in the walkout?”|
However, polling employees within the process of voluntary recognition where the employer has agreed to recognize the union if organizers can prove they’ve gathered the necessary level of support is not illegal. In this context, polling is a necessary step in the democratic process of voluntarily recognizing a union and is usually carried out by a neutral third party. However, there are guidelines for this activity that, if breached, transform the act of polling into surveillance and coercion. On the NLRB election-related content page, the guidelines for polling workers are enumerated. Management has the right to:
Poll your employees to determine the truth of a union’s claim of majority status, provided that you observe certain safeguards. You must not have engaged in unfair labor practices or otherwise created a coercive atmosphere. In addition, you must (1) communicate to employees that the purpose of the poll is to determine whether the union enjoys majority support (and that must, in truth, be your purpose); (2) give employees assurances against reprisal; and (3) conduct the poll by secret ballot.
Since Times management has insisted on an NLRB election process, they have no legal right to directly ask workers if they oppose or support the union. Nevertheless, workers have continued to report to the union that they’ve been subject to interrogation by management. The only plausible reason management would have for polling is to track union support and adjust their anti union strategy accordingly.
If only there were proof…
On August 10th, the day before the walkout, union workers joined an emergency call with their CWA team. In this call, they learned that the lawyers supporting management accidentally CC’d a member of CWA staff and included an attached slide deck outlining the company’s anti-union strategy. In the deck, workers saw a chart that detailed management’s understanding of worker support for the union by roles.
As part of inoculation training for workers, the NYT Tech Guild prepped workers to expect comments and questions from management that are commonly used to gage union support. Workers were informed of their right to withhold their position on the union. Considering that management made it clear in captive audience meetings that they opposed the union drive and then refused to voluntarily recognize a super majority of union support, it’s highly likely Times leadership does not have an accurate assessment of worker support. The large percentage of unknown presented in this chart is a sign that management’s numbers are significantly flawed. Workers reading through the deck then came to a telling slide:
This slide revealed that the union has a likely chance of winning the NLRB election in all three scenarios. This means that if management is looking at the eventuality of a union, it is in their best interest to reduce the size of the union to minimize workers’ collective power. This illuminating slide deck proved to workers that management’s rhetoric advocating for an NLRB election was in service of the same end-goal: to exclude as many workers from the unit as possible in service of limiting the eventual power of the likely successful union.
At this point in the drive, management is openly challenging one of the most powerful characteristics of the NYT Tech Guild, its size. And this appears to be a direct response to intel from illegal polling. In the Daily Beast piece that publicly broke the news of the mistakenly sent slide deck, media reporter Maxwell Tani touches on the effect this deck had on union organizers:
“Angela Guo, an organizing member of the union, said the Times’ decision to pursue that strategy, even if it meant losing the NLRB election, was illuminative.”
Seeing this anti union, cynical slide deck was the last straw. NYT tech workers have had enough and took the first steps to put a strike in motion. Immediately, the legal team at CWA filed another unfair labor practice charge for the illegal polling as workers began to organize the union and prep for a walkout. In a piece by Angela Hu for Poynter, a worker from the union expresses how management’s illegal tactics turned worker frustration into action:
“However frustrating it is to be dealing with management’s somewhat bad-faith arguments and moving goalposts in trying to form a union — that’s one thing. It’s another thing to engage in unfair labor practices,” said organizing committee member Nozlee Samadzadeh. “We really, at this point, feel like we have no choice but to garner our collective power in order to make a statement about how this isn’t okay.”
How Did The Union Pull This Off?
The NYT Tech Guild walkout was specifically in response to management’s Unfair Labor Practices. This is an important distinction that legally defines the collective action as a strike. Meghan Hurlburt, a NYT Tech Guild member, described the difference between a strike and a walkout for us:
A “strike” is specifically about a contract negotiation, typically a longer time period, and is voted on by the entire union using a predetermined process. If the strike is authorized, everyone strikes. “Walkouts” tend to be shorter time periods, typically focused on a single issue, and are opt-in, signed by whoever is participating, and organized more quickly.
The collective action that took place yesterday at noon was a walkout in every way but one, the stated reason for the walkout was protest over a ULP. When workers take part in a labor stoppage over a ULP, they are technically more protected by US labor law.
Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers. Such strikers can be neither discharged nor permanently replaced. – NLRB strikes page
In contrast to a ULP strike, if workers strike as a negotiation tactic to force management to agree to demands regarding working conditions such as wages, hours, safety policies, then workers can be permanently replaced by the employer and workers are not legally entitled to reinstatement. The strategy of striking over ULPs is an impressive first for the tech industry and so is the speed organizers garnered commitment for the walkout. Kathy Zhang, a NYT Tech Guild member stressed the importance of consistent and meaningful one-on-ones between organizers and fellow workers.
We could’ve never pulled off this work without having engaged in literally thousands of 1:1 conversations between colleagues. Unions are most effective when they operate like mutual aid—you build trust that you’ll have each other’s backs in a work action like this when you create strong relationships with one another. As organizers, we wouldn’t have been able to turn this ULP strike into a majority action if we didn’t know our colleagues well enough to make a big, direct ask.
Bon Champion, a NYT Tech Guild member, shared more on the organizing work that supported such a high percentage of worker participation.
Our ability to move fast was honed by smaller actions we’ve been taking for months now, including using avatars and backgrounds, collecting testimonials, and most recently our American Arbitration Association (AAA) election petition which garnered nearly 70% support within our unit. When the organizing committee found out from our NewsGuild rep about management’s position to exclude all non-engineers from the bargaining unit, we immediately got on a call together. We decided pretty quickly on a half day walkout and held a quick vote to decide the timing. Over the next ~2 days we hammered out language and planning and shared that plan with the rest of the unit through our non-work slack, email, texts, and 1:1 convos.
Taking part in a work stoppage event can be a litmus test for union support and worker solidarity in a union drive. It’s similar to workers wearing a union button to work or changing their slack avatar. These actions are part of a spectrum of public commitment that signify safety in numbers and can sway fellow workers to join. This level of exposure, where workers openly resist management’s standing order to come to work, requires a tremendous amount of trust between workers. Meghan Hurlburt, a NYT Tech Guild member, describes how the organizing team and members of the union approached outreach leading up to the walkout:
There was some nervousness, but also a lot of excitement. The way I always want to combat anyone’s nervousness as an organizer is with transparency – it’s natural to have a lot of questions about something like this, especially if you feel like management might retaliate — and we’ve had a tough campaign. Sharing info as early and often as possible is so important to building the trust required to do this. think a lot of the success of this walkout was in the work that came before it, in the longer term, in order to get to a place where this was possible. We want a union with an engaged membership, and the walkout is just the latest of the direct actions we’ve taken. My favorites have been focused on community building internally. We have a salary spreadsheet where people can contribute anonymously, and a corresponding slack channel, where we post our salary journeys through the years at NYT and at previous jobs. It’s generated a lot of good discussion. That’s just one example of how we’ve built up that trust and solidarity over the past months as a union, which enabled us to move quickly to get everyone’s questions answered about the walkout. We know from our organizing effort and the solidarity we’ve been building with our coworkers that we have the right to do this from a legal perspective. When we found out about management’s position that they wanted the unit to include engineers only, we knew it was time to put the work we’ve been doing into action.
Tech’s First Unfair Labor Practice Strike
Workers across tech and the labor community tuned in to Twitter during the walk out and found a trove of pro union messages and pledges of solidarity from union members, labor activists, politicians, and fellow tech workers. A large-scale successful action like this walkout is a show of strength from the union and a really good sign for their prospects heading into an election.
The level of participation in this historic work stoppage in the tech industry is a clear demonstration of the power of a union and the support that is reinforced by the community standing alongside them. As management attempts to cut down the union’s bargaining power within the walls of the Times, the union’s power grows with surging external support.
Considering this union is on track to be the largest group of tech workers legally recognized as a union, this level of militancy is a sign of the growing capacity for tech workers to hold our companies accountable.
What’s Next For The Largest Recognized Tech Union?
On the day after the walk out, Times management held an all-hands. The statements and comments made about the strike and the union were less than charitable and characterized the strike as an overreaction.
One of the most notable statements made by the Times CEO was about the appropriate use of labor stoppage. In a piece from Jack Crosbie of Discourse Blog, we hear how management puts down this historic and justified instance of direct action.
“We were a little disappointed in the union’s decision to resort to a strike yesterday,” Kopit Levien—who has a history of speaking against the union effort in staff meetings—said. “That’s a highly unusual tactic just as the NLRB process is getting underway, and unusual when done instead of engaging in a dialogue to resolve our differences. The steps that the company is taking now, which are attempting to work with the union to define the appropriate scope of the unit, are procedural, they are legal, and they are typical, and we believe that constructive dialogue to reach agreements is the best way to move this process along efficiently and fairly.”
Shortly after the all-hands, and in full opposition to the union’s strike demands, management filed for a hearing with the NLRB to aggressively redefine the bargaining unit.
On the same day, the new head of the National Labor Relations Board, General Counsel Jennifer Abruzzo, signaled to the labor community that she is considering a new approach to the union recognition process that would make it much more difficult for anti union management to refuse granting recognition to unions that can demonstrate majority support.
One thing that this past week of historic labor action in tech has taught us is that labor law needs to change.
Historically, worker militancy has been a catalyst for the most impactful pro worker changes to labor law. Until then, companies will continue to exploit the legal system to weaken worker rights and maintain unilateral power over the tech industry.
It’s time for tech workers to earn a seat at the table through the power of direct action. If the workers of NYT Tech Guild can do this, so can we.