When Oakland resident Chris Jasinski joined Imperfect Foods, he was happy to be at a place where he’d be an employee, not a contractor like grocery delivery workers for Instacart or Amazon-owned Whole Foods.
“That’s one of the good differentiators right out of the gate for Imperfect Foods versus other companies,” he says.
Jasinski has been at the company for just about a year. Several months in, he started talking to other workers about organizing. He was not the only grocery delivery worker who thought joining a union would be a good idea.
Since the coronavirus pandemic began, workers across the grocery delivery business at places like Instacart, Safeway, Whole Foods, and Trader Joe's have been trying to unionize to get more protections and benefits.
Last month, delivery workers at Imperfect Foods succeeded. The vote was tight: 28 workers in favor, 23 against. The company is now set to join the United Food and Commercial Workers International Union.
Imperfect Foods has always pitched itself as a company trying to make the world a better place. It began by letting customers purchase produce that was not quite perfect and would otherwise end up donated to food banks or even in the trash.
This not only enticed customers but also employees like Jasinski, the delivery worker from Oakland. “One of the big draws of coming to work for this company in the first place was its explicitly green mission," he says.
During the pandemic, business has boomed for Imperfect Foods.
The company just raised $95 million in venture capital, bringing its total investment up to $229 million. But as the company has grown, so have tensions with its workers.
Jesus Gomez is a delivery driver in Sacramento, and he was bothered by how the company handled the surge in business. “They were unorganized, that’s what bugged me the most,” he says.
Like Jasinski, Gomez voted to unionize.
He says one of the issues was the way the company started pushing drivers to work on Saturdays. The company technically does not require drivers to come in on those days, but the drivers KQED spoke to said it was made clear to them they were expected to work.
Gomez also points out there was increasingly less predictability about their routes and longer distances to travel to work.
Based in Sacramento, he says, “You would sometimes have to go to East Bay and SF to work, or Merced, or Reno. They sent you over there and you’d get 100, 100-plus boxes. We were getting out late and we had to be ready to be the next day.”
There were other issues, too. According to Gomez, delivery workers haven't received any raises or extra hazard pay.
“We didn’t get not even a dollar more,” he says, “so that was what was getting me mad or a lot of people. We see them growing but we don’t grow with them.”
Unionizing where others cannot
After the votes were counted on April 14, Imperfect Foods announced it would challenge the results with the National Labor Relations Board (NLRB), a common anti-union delay tactic. But the NLRB threw out the challenge and certified the union.
The company declined to comment for this story. But in a blog post published in the week after challenging the election, CEO Philip Behn wrote: “We can and will do better at collaborating directly with our employees and resolving our issues.”
Having unionized delivery workers makes Imperfect Foods an outlier among venture-capital-backed grocery delivery companies. But their effort can’t be a model for all on-demand grocery delivery workers, not since Proposition 22 became law in California just last year.
Prop. 22 makes it legal for app-based gig companies to classify their workers as contractors, not employees. And that means no NLRB protections.
“Under current law, gig workers, if they are independent contractors or even if they’re misclassified as independent contractors, they’re not covered by the National Labor Relations Act at all, so they actually don’t have legally the right to collective bargaining,” says Ruth Milkman, a labor sociologist at the City University of New York.
The way Prop. 22 was written, political analysts say it’s nearly impossible to overturn. But change could come at the federal level, with the PRO Act.
The PRO Act is federal legislation that would curb some of the anti-union tactics that have become routine in the U.S. It would make it more difficult for companies to delay union elections, drag out the contract negotiating process and push anti-union messages on workers.
Most critically for app-based workers, it would allow contractors to unionize.
UC Santa Barbara labor history professor Nelson Lichtenstein says the PRO Act would “totally wipe out Prop. 22.”
But with their razor-thin margin in the U.S. Senate, Democrats would need every single senator to support the legislation to get it passed, but not every legislator is on board.
Even if the PRO Act doesn’t pass, Lichtenstein says, the union vote at Imperfect Foods could be helpful for app workers in California who want to organize because it provides a model of grocery delivery workers at a Bay Area startup who actually have a union.
“If a group of workers are doing the same work who are defined as employees, unionize, that will have a large impact on both the impulse for the other workers to unionize and also in a legal and political realm as well,” he says.
Lichtenstein expects some legal battle to start brewing in the future.
U.S. Labor Secretary Marty Walsh has already openly rebuked Prop. 22. With Imperfect Foods, the U.S. Department of Labor may have a counterexample to the app work: a group of workers at a venture-backed grocery delivery company who are not only employees, but now who also have a union.
