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I’ve noticed over the years that, as progressive and as pro-union as people might be, there’s a huge black hole when it comes to understanding the on-the-ground, day-to-day obstacles any worker must overcome to become a union member in the private sector. People know it in general terms. But, the specifics are a bit hazy.
So, I thought it would be useful to go a bit into the weeds, using actual data, by peering into what is up in the Starbucks organizing campaigns.
Two caveats as you read this:
EVERY worker deserves a union and it is just short of astonishing to see workers stand up and take the chance to organize a union given how viciously companies go on the attack against pro-union workers. BUT: as I’ve written before, purely from a strategic point of view, I think the focus on taking on Starbucks, and other similar type companies (e.g., REI, Barnes and Noble), actually underscores the weakness of the labor movement— highlighting wins in coffee-shop organizing elections casts even more light on the failure to make any headway at large companies that make a real difference to overall wages in the economy (Remember, when union wages rise, overall wages rise for all workers). As a practical matter, it will take decades to organize Starbucks’ 10,000-plus stores, it make virtually no difference to overall power in the the economy and, certainly, doesn’t add much to the percentage labor represents in the economy (for context: in the private sector today, unions represent, generously, between 5-6 percent; labor as a whole would need to net organize more than one million workers per year to move that number just one percent). I don’t buy the (weak) argument that winning union elections for a handful of people at Starbucks creates some sort of “momentum”. More on that in future posts.
The labor movement has invested millions of dollars in pushing the Protecting The Right to Organize, the so-called PRO Act, which the AFL-CIO says, “restores the right of workers to freely and fairly form a union and bargain together for changes in the workplace.” Reality: the PRO Act is dead on arrival, it will never pass and never become law, mainly because it would need 60 votes to pass in the Senate, which will not happen in your lifetime. And even if it did pass, without a serious change in organizing strategy, it would not fundamentally alter the power dynamics in the private sector. If it’s just a messaging vehicle to highlight the anti-union landscape, I’m skeptical it penetrates beyond a very small circle of people. So, it’s worth taking a step back and considering whether all the considerable amount of money and time invested in the PRO Act is better spent in other ways.
Before we drill down on the Starbucks organizing effort, let’s run down a few of the real basics about this whole process—entire books are written about the soup-to-nuts landscape of labor organizing but, for here, I’m just softly touching on some general themes to give context:
We have very weak labor laws, compared to virtually every other advanced economy (I use “advanced” here advisedly because, while the measure of Gross Domestic Product places the U.S. at the head of the global pack, you’d be hard-pressed to consider this country “advanced” in the way it treats, economically, its children, seniors and others). Companies break labor laws all the time (as you will see in a moment) because, frankly, from a dollars-and-cents point of view, it makes sense—the penalty when a company gets caught breaking a labor law is a joke, maybe earning a puny fine or being forced to post a notice saying “We were bad people and we don’t do it again” (wink, wink). Certainly, no executives go to jail time, even the habitual offenders;
You can understand how weak unions are in the private sector by considering that the greatest growth in unions over the past 30 years has been in the public sector, not the private sector. Union rights in the public sector can be conferred on government workers (or quasi-government workers) by executive order with the stroke of a pen, making the grueling process of a union representation election unnecessary. For example, at least in states with Democratic governors, public sector workers experience less overt hostility because it’s a bit harder for a politician who won office thanks to union votes to run a brutal, hard-nosed anti-union campaign;
An employer always has an advantage under the law because union organizers, prior to winning a union representation election, do not have the right to access the workplace. Think of it this way—imagine you are running for president but you can only speak one-on-one to voters by shouting into the U.S. across a border fence or flagging someone down when she crosses the border into Canada or Mexico, while your opponent can campaign every day, face-to-face with every voter, in every state and every community. That’s essentially the scenario facing union organizers—they can only communicate directly with workers outside the walls of the company. Yes, these days they can do so virtually via social media, but, that means they have to have contact info for workers—a painstaking collection process. The company, on the other hand has, effectively, a captive audience (hence, the term “captive audience” meetings in which a company forces workers to gather, during work time, to hear anti-union diatribes)—and the company has every bit of information about a worker.
How do you get the right to have a union election? If 30 percent of the workers sign an authorization card, a representation election can, then, be ordered by the National Labor Relations Board (NLRB). But, in practice, you’d be insane to file for a union election without well above 50 percent of the workers having shown explicit support by signing an authorization card—because you will almost certainly lose supporters during the vicious anti-union campaign to come (actually, the vicious campaign already typically underway the moment the company gets a whiff of union activity). Accumulating authorization cards is a long, hard process.
And, then, the fight starts over who actually is eligible to take part in the vote. The union tries to include as many pro-union workers as possible (in other words, exclude supervisors) while the company tries to limit the scope of the union population and insert as a Fifth Column, if possible, people who really are supervisors/managers who would be counted on to pimp for the company.
Delay, delay, delay is the core company strategy.
Delay a union election as long as possible—by breaking the law repeatedly. The longer the process drags out until an actual vote is held, the higher the frustration grows on the part of a segment of workers who are not die-hard union supporters but would vote for the union if they saw tangible, immediate gains in the not too distant future.
And, in the unhappy outcome, from the company’s vantage point, of a union victory, delay, delay, delay any agreement on a first contract. Little known fact outside the union world: one year following the certification of a union election victory in an election, a company can file to have the union “decertified” through a new election—and, without a tangible first contract to show for all the effort that led to the union victory first time around, a company hopes to shake the confidence in the union among just enough workers to eject the union from the workplace.
The actual election is scheduled by the NLRB. The time line for casting ballots will vary, depending on the workplace and number of voters.
The counting of the ballots is overseen by the NLRB; the company and union can each have representatives present at the counting—and always do.
After the counting of the ballots, each side can file objections—typically over whether a ballot is valid (sound familiar?);
After those objections are reviewed and decided, the NLRB will certify the election, either by finding voters chose union representation, or rejected it;
If voters chose the union, an order to bargain, then, follows. And, then, the company delay strategy kicks into high gear.
A final broad point: This is why elections in the political arena do matter. The Starbucks lawlessness we are about to look at is only being somewhat challenged because there is a Democratic-majority on the five-person National Labor Relations Board and, at the current senior staff level, there is an actual belief that workers have rights and the law should be enforced. That isn’t the case when Republicans run the show.
I make the above point—and will write more about this soon—because it forces plenty of us to have to live—dammit!!!—in a complicated moral and political reality. Which can be boiled down to: how do you embrace the idea that the political system is deeply rotten needing a thorough revolution AND until that revolution washes across the country millions of people depend on funding for, say, Medicaid and food security, and, to our discussion today, plenty of people benefit from having a smidgen of rights at work. In the reality of the daily lives of actual workers it matters who runs the government—an economic reality not shared by, ahem, a variety of “alternative” candidates who range from stupendously wealthy thanks to inherited wealth to very comfortable thanks to academic tenure, among other assets.
Ok, enough with the prologue.
The ANTI-UNION INDUSTRY:
You might wonder how can it possibly be that union support in polls has never been higher—and, yet, labor representation in the private sector languishes down in the lower single digits?
Because polls are no antidote to the multi-billion anti-union industry that has grown dramatically over the past 40 years.
I had a view of that industry in its mid-infancy: back in the early 90s, I came across a guy named Marty Levitt. He was a petty operator in a rag-tag, relatively small club of almost exclusively white men who probably couldn’t get steady jobs doing worthwhile work.
Instead, in the 1970s and early 1980s, they pitched a fairly low-rent, union-busting toolkit to companies: intimidation of workers (either by outright threats or implied threats delivered by supervisors), spying, and over-the-top fliers spread throughout the workforce to poison the well. Those tactics were confined, compared to today, to the fringes of the corporate world. I took even Marty’s stories and self-described exploits, offered as a confession, with a large heaping of salt—in one of our first conversations on the phone, he had told me was a reformed alcoholic. When we met at a Manhattan hotel bar for the first time, he proceeded to order two vodkas, assuring me he could handle it. Okay…
Today, the coarse Marty Levitts of the world don’t exist.
Because they don’t have to.
The anti-union industry is now very sophisticated, and far from lurking in the dark shadows, it is deeply embedded in every major corporate law firm in the country. It’s a big steady money maker, generating huge fees billed by the firm’s “employment” departments.
Alongside these law firms, major companies maintain in-house anti-union departments whose experts train supervisors on a regular basis in tactics to undercut unions and mobilize “shock troops” to parachute in to any worksite the instant the first pro-union flyer pops up. Wal-Mart, for example, once got a whiff some years ago of a nascent union organizing effort in a single meat-cutting department in the South—so the company, one of the most rabid anti-union companies (I never set foot in a Wal-Mart), moved to stamp out any murmur of unionism by closing down every single meat-cutting department throughout the South.
Starbucks, well, it is not cutting corners. Bloomberg tells us this:
Starbucks Corp.’s fight to repel a unionizing campaign at coffee shops across the country has turned into a goldmine for the massive law firm on the front line.
Littler Mendelson has staffed at least 110 attorneys, including more than 50 partners, to advocate for the world’s largest coffee chain on union-related cases since late 2021, according to a Bloomberg Law review of dockets.
It’s not clear how much Starbucks is paying the firm, whose equity partners raked in $560,000 in profits on average last year. But the sheer volume of outside lawyers underscores the enormous amount of legal work generated by the company’s push to stymie worker organizing, so far with mixed results.
“All of this is unprecedented,” Matthew Bodie, a former National Labor Relations Board attorney who teaches at the University of Minnesota, said of the volume of Starbucks work at the agency. “It’s hard for me to wrap my brain around it, and it seems to just keep coming.”
Starbucks is using its deep pockets—the company’s revenue exceeded $32 billion in fiscal year 2022—to pay an army of lawyers to fight off the union and defend against a slew of allegations that it’s violated federal labor law. [emphasis added]
Even to my eye, having seen this union-busting script play out for years in virtually every industry across the country, that’s a pretty staggering level of spending on anti-union resources.
And the Littler Mendelson firm, which is one of the premier union-busting operations, has not held back…
BREAKING THE LAW:
Starbucks law-breaking is, in fact, epic. To get a handle on the scope of it, I am using official statistics from the National Labor Relations Board, as of June 16th [A note: I get these stats via the press office, which is extremely adept and professional—if journalists were actually interested in reporting on the abuse of workers on a regular basis (as opposed to writing the 100th repetitive story about what someone thinks in a diner in Middle America), the information is readily available].
This is a handy chart to understand the flow of what happens when a charge is filed with the NLRB—it will also tell you what a tortured path awaits workers:
We’ll get to Starbucks law-breaking momentarily. It’s helpful first to understand why the law-breaking is so widespread and why the Littler Mendelson firm is getting rich off of Starbucks crimes:
In a word, it’s because Starbucks is getting CREAMED in the elections. If this was a friendly softball game, the mercy rule would have been invoked long ago. Here is your rundown, in each column below, of the petitions filed for union elections, how many elections were held (in other words, places the NLRB found merit to hold an election—virtually every single one) and how many places the workers won the right to a union (“certified bargaining units”):
In other words, of the 408 elections held so far, the union has won 78 percent—with a fair number still waiting to be certified.
Starbucks, with the blessing of Howard Schultz, has no choice but to break the law.
Because it is losing at an epic rate.
So, it has unleashed a torrent of law-breaking activities:
NLRB Regional Offices have docketed 574 open or settled ULP [Unfair Labor Practice—JT] charges filed with the Agency by various parties against Starbucks Corporation, Siren Retail Corporation, or Littler Mendelson, P.C. across 38 states:
Regional Offices have issued 99 complaints covering 349 ULP charges against Starbucks Corporation and Siren Retail Corporation following investigation. This includes a nationwide complaint in April consolidating 32 charges across 28 states, which alleges that Starbucks has failed or refused to bargain with certified bargaining units at 163 locations.
The NLRB has made decisions in two cases:
Philadelphia, PA (04-CA-252338, et al.): In a February 13, 2023 decision, a three-Member panel (McFerran, Wilcox, Prouty) ordered Starbucks to offer reinstatement and provide make-whole monetary relief for two unlawfully discharged employees. The Board is seeking enforcement of its order in the 3rd Circuit.
Seattle, WA (19-CA-299478): On November 30, 2022, a three-Member panel (McFerran, Kaplan, Wilcox) granted the General Counsel’s Motion for Summary Judgment, finding that Starbucks unlawfully refused to bargain with the union at its Reserve Roastery. The Board is seeking enforcement of its order for the employer to bargain with the union in the 9th Circuit.
Administrative Law Judges—the step below consideration by the full NLRB board—found violation of the law in 16 cases. It’s worth reading the summaries below to understand the scope of venality: the threats, intimidation, spying and firings—this is what goes in the workplace every single day when people try to unionize (each case has a link to the full case decision—for the truly wonky amongst you):
Seattle, WA: On May 31, 2023, an ALJ found that Starbucks threatened employees with economic reprisal. The decision ordered Starbucks to cease and desist and post a notice.
Wichita, KS: On May 30, 2023, an ALJ found that Starbucks threatened employees with economic reprisal, created an impression of surveillance, and reduced store hours because of union activity. The decision included a broad cease-and-desist order as well as a notice posting and notice reading by a store manager.
Hialeah, FL: On May 17, 2023, an ALJ found that Starbucks threatened employees with reprisals. The decision ordered Starbucks to cease and desist and post a notice.
Buffalo, NY: On May 12, 2023, an ALJ found that Starbucks illegally subpoenaed 22 current and former employees in the course of injunction litigation in federal court. The decision ordered Starbucks to withdraw or seek dismissal of its subpoenas and related motions as well as reimburse employees for related legal expenses.
Los Angeles, CA: On May 12, 2023, an ALJ found that Starbucks illegally threatened employees with economic reprisal and interrogated employees about their union activity. The decision ordered a “broad cease-and-desist order,” and a notice reading from a “responsible management official.”
Memphis, TN: On May 4, 2023, an ALJ found that Starbucks illegally fired five workers and interfered with the employees’ rights under the NLRA. The decision ordered Starbucks to reinstate and make whole the unlawfully fired workers, cease and desist from unlawful activity and electronically distribute a nationwide notice posting. (A federal judge previously ordered injunctive relief reinstating these five workers and two other employees.)
Chicago, IL: On May 2, 2023, an ALJ found that Starbucks illegally disciplined and fired a worker and threatened employees with a change of working conditions and loss of benefits for engaging in protected activity. The decision ordered Starbucks to reinstate and make whole the unlawfully fired worker and have a notice reading by a “responsible management official.”
Minneapolis, MN: On April 6, 2023, an ALJ found Starbucks interrogated and threatened its employees repeatedly on their union activities. The decision ordered Starbucks to cease and desist and post a notice.
Oak Creek, WI: On March 3, 2023, an ALJ found that Starbucks violated the NLRA by “unlawfully interrogating employees about their union activities and by threatening employees that their union activities and/or unionization could lead to various adverse consequences.” The decision ordered Starbucks to cease and desist and post a notice.
Buffalo, NY: In a 218-page decision issued on March 1, 2023, an ALJ found “egregious and widespread misconduct demonstrating a general disregard for the employees’ fundamental rights” by Starbucks across multiple Buffalo-area stores. Among other remedies, the ALJ ordered the employer to reinstate unlawfully fired workers; reimburse workers for consequential harm they suffered as a result of Starbucks’s unlawful conduct; provide union access and equal time to respond; post a notice electronically, including on all forms of social media, and at all U.S. stores and with an explanation of workers’ rights; bargain with the union at three locations (including one Gissel bargaining order); reopen an unlawfully closed facility; conduct ongoing training; and have Starbucks executives Howard Schultz and Denise Nelson read the Notice to Employees and an Explanation of Rights or be present during a reading by a Board agent to the employees at the Buffalo-area stores.
Ann Arbor, MI: On February 9, 2023, an ALJ found that Starbucks threatened employees with loss of benefits and removed and prohibited union literature at three stores in the Ann Arbor area. The decision ordered Starbucks to cease and desist and post a notice.
Denver, CO: On February 6, 2023, an ALJ found that Starbucks interrogated their employees, threatened employees with loss of benefits, threatened to call the police on employees, and unlawfully fired a worker. The ALJ ordered Starbucks to reinstate the fired worker with make-whole relief and cease and desist from further unlawful activity.
Seattle, WA: On January 31, 2023, an ALJ found that Starbucks had threatened employees with a decrease or loss of benefits if they supported the union at its Seattle Roastery. The decision ordered Starbucks to cease and desist and post a notice.
Seattle, WA: On November 3, 2023, an ALJ found that Starbucks had threatened employees with discipline if they testified at an NLRB hearing without securing shift coverage. The decision orders Starbucks to cease and desist and post a notice.
Kansas City, KS/MO: On October 12, 2022, an ALJ found that Starbucks had violated the NLRA at Kansas City area stores by unlawfully firing four workers, calling the police on employees who were congregating outside, changing work schedules, more strictly enforcing Starbucks’ dress code policy, and making various threats. The decision ordered Starbucks to cease and desist and post a notice at two stores. For a third store, it also ordered the employer to bargain with the union (a Gissel bargaining order), rescind unilateral changes to terms and conditions of employment, and reinstate four unlawfully fired workers with make-whole monetary relief.
Ann Arbor, MI: On October 7, 2022, the ALJ found that Starbucks unlawfully fired a worker who had engaged in protected activities, including testifying in an NLRB hearing. The decision said that this action “sent a message to employees that those who supported the Union did so at their own peril.” The decision ordered Starbucks to reinstate the worker with make-whole monetary relief and to cease and desist from further unlawful activity. (A federal judge later ordered injunctive relief reinstating the worker.)
Yes, the company can also file charges against the union. And, usually, does—partly because the law firms just run up the bill, raking in more fees, and, remember what I wrote above: a key strategy for the company is delay, delay, delay, and filing charges drags out the process.
In the Starbucks campaigns:
The employer has filed 113 charges against the union, most of which allege that Workers United refused to bargain. The Agency has dismissed 108 of these charges, and the remainder await merit determination.
In other words, virtually all of the company’s charges (over 95 percent) were found to be—in legal terms—a pile of bullshit.
If you marveled at the thicket of legal action needed just to make sure workers have the basic right to vote for a union and, then, once they are victorious, to see a fair deal reached at the negotiating table—that’s the world we live in. And it explains a lot about the contours of class warfare in the U.S, the deep divide between rich and poor, and the robbery of the fruits of workers’ labors over the past half century.
I want to end by just hammering home the key points:
Starbucks is a company with absolutely no boundaries and the lengths it will go to attacks its workers and try to grind people down—people who just want to make a bit more money;
For all the victories over Starbucks, in hundreds of elections, the 319 certified bargaining units add up to a grand total of…800 plus workers. With thousands more to go;
If this is the picture at Starbucks, you can be sure it’s far, far, far worse at much bigger companies that are shaping the economic conditions for tens of millions of people: Tesla, Amazon, Microsoft and their ilk.
What can be done? Stay tuned.
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