The Rising Toll of Anti-Union Discrimination

As Starbucks workers increasingly fear that, individually and collectively, they will suffer seriously adverse consequences if they opt for unionization, petitions for NLRB elections from new stores are slowing down. At a small number of stores, petitions for NLRB elections have been withdrawn because of the devastating impact of management’s union busting. Election victories are becoming harder fought; the number of election defeats — almost always in the wake of egregious union busting — is increasing. And Starbucks is continuing its war of attrition against workers in its already unionized stores, perhaps in preparation for future decertification campaigns, and to send a message to nonunion stores across the country: organize and you could be next.

In 1984, Harvard economists Richard Freeman and James Medoff wrote that employer opposition had contributed to the “slow strangulation” of private sector unionism; today, Starbucks and its lawyers are showing beyond doubt that multibillion-dollar corporations continue to strangle workers’ ability to form unions. Contrary to Howard Schultz’s comments in a New York Times interview that he’s battling for the “hearts and minds” of Starbucks workers, the reality is that Starbucks management is slowly strangling its pro-union workers.

Starbucks’ ferocious anti-union campaign has had a profoundly negative impact on the union organizing campaign, especially in the past two months. The extraordinary success of the campaign has partially obscured the intensity of Starbucks’ unlawful union busting and its egregious abuse of the NLRB’s administrative processes.

The ultimate aims of Starbucks’ nationwide anti-union campaign, designed and implemented by corporate HQ and Littler Mendelson, are as follows: 1) to make impossible fair elections at any one of its almost 9,000 corporate-run stores, 2) overwhelm the understaffed and underfunded NLRB with appeals and delays in the processing of election petitions and allegations of unlawful management tactics (225 unfair labor practices (ULP) charges are now open at the Board), and 3) exhaust NLRB personnel at the regional level in an endless “whack-a-mole” scenario as they attempt to remedy Starbucks’ unlawful actions at dozens of stores across the country.

Justice Delayed

Littler lawyers have repeatedly engaged in deliberate and unjustified delaying tactics. Under normal circumstances, seven weeks’ delay from union petition to vote would be considered excessive. But workers in multiple stores in Chicago, Los Angeles, Boston, Richmond, Virginia, and multiple other locations have been forced to wait six or seven months simply to get an NLRB election.

Indeed, providing workers with more timely elections is the one thing that the NLRB could have done earlier in the campaign — when union spokespeople criticized its “snail-like pace” — to ensure workers a fair choice, as the law demands. Instead, Littler attorneys were allowed to game the process to ensure extraordinary delays. Many of those stores eventually won their elections despite long waits, but several have lost. Faster elections would have provided the union drive with enormous additional momentum during its critical fledgling months — as well, most likely, as more victories.

Moreover, while being forced to wait many months for elections, workers have been fired, driven out, or faced intense management pressure to oppose unionization. Many stores have been packed with new workers or flooded with outside managers. This is why a delay is often a killer for organizing campaigns, and why union avoidance law firms always advise their clients to appeal bargaining units and delay the NLRB election process for as long as possible.

Starbucks has allegedly fired more than forty pro-union workers since the campaign started. Workers who have been unlawfully terminated have frequently had to wait months for regional NLRBs to issue a complaint. In the meantime, the sacking of activists has had a profoundly chilling effect: it has discouraged workers in multiple stores nationwide from organizing or petitioning for elections, but especially workers in stores close to the ones at which the terminations have taken place.

For example, the early February termination of the “Memphis Seven,” a group of Starbucks workers which includes six members of the organizing committee, directly discouraged several stores in the Memphis and Nashville regions from petitioning for elections, even though they had started to organize. Without a 10(j) court injunction, it can take months, or even years, for the NLRB to win the reinstatement of wrongfully terminated workers.

Abusing the NLRB’s processes

The Board’s administrative processes were almost designed to be exploited and abused by anti-union corporations such as Starbucks. For example, when regional boards have sought 10(j) court injunctions to compel Starbucks to reinstate workers while their cases work their way through the Board’s lengthy processes, Littler lawyers have fought them aggressively.

Regional directors first need the authority of the NLRB’s general counsel to seek an injunction. When general counsels are timid at protecting pro-union workers (as in under Donald Trump’s NLRB general counsel, Peter Robb, who oversaw a plummeting number of 10(j) injunctions) they win most 10(j) cases because they seek them only when the evidence is overwhelming. However, NLRB general counsel Jennifer Abruzzo has said she will request 10(j) injunctions more frequently and attempt to streamline the process to avoid harmful or deliberate delaying tactics.

When the NLRB is more assertive about seeking court injunctions — here, in response to allegations of dozens of unlawful firings — they tend to lose more cases. In June, Starbucks convinced a judge to reject an injunction to reinstate three workers in Phoenix. The NLRB is seeking injunctions to reinstate seven workers in both Buffalo and Memphis. Denials of injunctions can discourage pro-union workers and embolden anti-union corporations.

Anti-union corporations often fare better in the federal courts than at the Board. The federal judges who grant or deny the injunctions have little comprehension of anti-union intimidation, and they often prefer not to “interfere” in NLRB cases. Thus Board lawyers must not only cite NLRB case law, but explain what it’s like for workers trying to organize while facing the constant threat of termination.

Starbucks: Unlawful Firings Have Helped the Union

The Memphis Seven case shows the ludicrous arguments Starbucks is using to destroy its workers’ fair choice on unionization. The District Court has yet to decide on the regional director’s request for injunction in the case of the Memphis Seven. Even though the workers have not yet won reinstatement, the store successfully organized, showing the workers’ clear desire for an independent voice. The one remaining member of the seven-person organizing committee was able to sign up almost all of the new hires, and in one of the most remarkable victories in the campaign so far, workers won their union by an 11-3 vote in early June.

Opposing an injunction, Starbucks lawyers claimed that not only had the terminations not created a “chilling environment” for union organizing, but that the “discharges emboldened union organizing activities in Memphis and throughout the nation.” They pointed to the number of union victories and large margins of victories as evidence that the union campaign had flourished in the wake of the terminations.

Showing remarkable gall, Littler lawyers even suggested that the union may have set up the Memphis workers to get fired so that it could turn them into a national rallying cause for the campaign.

Contrary to Starbucks’ farfetched assertion, labor relations scholars have recognized for decades the hugely detrimental effect that unlawful firings have on organizing and the campaign cited specific stores in Tennessee, Virginia, Texas, and Mississippi that either stopped organizing or fell short in their goals because of the climate of fear created by the Memphis firings. But the trial has provided further insight into the extraordinary lengths that Starbucks is willing to go — even at the risk of making a mockery of its “progressive” brand image — to kill off the union campaign.

The Walmart of Coffee

Even in the face of Starbucks’ unlawful threats, workers will continue to petition for elections and vote to unionize. There’s no rational world in which Starbucks Workers United should win, and yet it has won, over a hundred eighty times so far. Cities like Albany, Richmond, and Pittsburgh have emerged as hotbeds of barista organizing.

Moreover, Starbucks’ unlawful anti-union campaign entails an enormous reputational risk for a company with a progressive reputation, workforce, and customer base. Enraged by what he views as disloyal employees, Howard Schultz appears prepared to obliterate the reputation of the company he created to keep his workers from choosing a union, even if Starbucks becomes synonymous with union busting, just as Walmart was in a previous era. But Starbucks’ high-stakes anti-unionism is more intimately and directly connected to the persona of its current CEO than the union busting of Walmart ever was.

Ultimately, the Starbucks Workers United campaign will not succeed or fail based solely on the actions of Joe Biden’s NLRB. But history will judge the Biden NLRB and the “most pro-union president in American history” by their ability to protect a fair choice for Starbucks workers.

In 1983, Harvard law professor Paul Weiler wrote that US union decline was “attributable to the stubborn and often coercive resistance of employers,” and that the National Labor Relations Act “more and more resembles an elegant tombstone for a dying institution.” The Starbucks Workers United campaign has proven that free from management interference, its workers would overwhelmingly choose to unionize. No one seriously doubts this anymore — not even Howard Schultz. The NLRB and the Biden administration must ensure that federal labor law provides Starbucks’ pro-union workers with real protections, not just an elegant tombstone.