U.S. business casts a wary eye at the surging labor movement led by young and optimistic activists

February 24, 2022, 3:02 PM UTC

Like many workers in the service industry, Sara Mughal found that her job got harder during the pandemic. Mughal, 31, is a shift supervisor at a Starbucks location in Hopewell, N.J. In those early months of 2020, she found there weren’t enough workers on the floor to enforce new safety protocols or tend to agitated customers. She wondered what it would look like to work with her fellow baristas to push for better working conditions, but she kept that thought in the back of her mind until the unionization drive at three stores in Buffalo, N.Y., began to get media attention last year.

“When you’re working in a Starbucks, you’re not thinking that unionizing is a feasible thing,” she says. But seeing other stores take the first step was inspiring for Mughal and her colleagues, and her store went public with their own petition for a union election on Jan. 11, joining a growing number of Starbucks locations across the country.

Though public polling in support of unions is at an all-time high, actual union membership in the U.S. remains close to historic lows. Only 6.1% of all private sector workers were unionized in 2021, according to the Bureau of Labor Statistics.

Still, a number of high-profile organizing efforts have emerged across the country in recent years: at Amazon warehouses in Bessemer, Ala., and on Staten Island; among tech workers at the New York Times; and at Google, where a minority of workers have formed the Alphabet Workers Union.

Well-worn questions like “do I get what I need from my employer?” and “do I deserve more from my employer?” have acquired an existential tinge as a result of the instability so many workers faced during the last two years of the COVID-19 pandemic. Labor organizing, historically, offers a path to workplace stability. But corporations aren’t inclined to embrace unionization. And most follow a standard playbook in an effort to stop the process—a fact that helps explain why even the most visible campaigns still run the risk of fizzling out.

The rise of the union-avoidance campaign

The National Labor Relations Act (NLRA) is the cornerstone of the country’s labor organizing legislation and dictates how workers in the private sector can organize and operate unions. It went into effect in 1935 as part of FDR’s New Deal, and in its original form, known as the Wagner Act, it encouraged collective bargaining and protected workers who sought to unionize. 

In the decade after it passed, a wave of unionization swept across the country. The tide began to shift in 1947, when Congress enacted the Taft-Hartley Act, which added a provision, Section 8(c), to the law expanding free speech protections for employers. The provision allows companies to campaign openly against unions so long as their statements can’t be construed as threats or promises, explains Ellen Dichner, a labor attorney and lecturer at CUNY School of Labor and Urban Studies.

It’s not illegal for employers to ask workers to vote “no” for unionization once a campaign reaches the election stage, and to hold “captive audience” meetings—allotted times during work hours that an employer uses to promote its own position, says Dichner. Mughal has seen both tactics used with her colleagues at their Starbucks location.

Law practices devoted to stopping unionization grew in the wake of this legislation. In the early 1970s, “a cottage industry of union-avoidance firms mushroomed into a gigantic industry,” says Jane McAlevey, a longtime labor organizer and senior policy fellow at UC Berkeley’s Labor Center.

These firms are very effective, says McAlevey. Though studies show that a majority of workers would choose to unionize if they could, “that number changes radically once union-busting firms show up,” she says. 

A 2019 study by the Economic Policy Institute estimated that employers spend $340 million annually on union-avoidance firms. Starbucks, for example, currently retains counsel from Littler Mendelson, the law firm with the largest union-avoidance practice in the U.S.

For employers who engage in union-avoidance campaigns, “the goal is to educate the workforce so that the employees understand what it truly means to have union representation and how that works,” says Jason Reisman, a management-side labor and employment lawyer at Blank Rome, a Philadelphia-based law firm. 

Companies waging a union-avoidance campaign are quick to point out that workers might lose certain personal privileges once unionized. “If you join a union, it’s not about the individual, it’s about the group,” says Ivan Smith, a management-side lawyer at Pittsburgh-based law firm Buchanan Ingersoll & Rooney. If workers enjoyed schedule flexibility so they could manage childcare needs, for example, there’s no guarantee that perk will carry over under union representation, Smith explains.

The span of time between a campaign going public and when the election takes place can become a messaging war between organizers and employers as they attempt to sway the majority of workers either for or against unionizing.

How companies contend with unionization efforts once organizers go public

Mughal says she and her fellow organizers were quiet about their unionization campaign before they went public so they could collect enough cards to petition for an election without corporate interference.

For every store that has sent ballots to workers, Starbucks has filed a “request for review” with its regional National Labor Relation Board (NLRB) office, arguing that the correct bargaining unit is a regional market rather than an individual store. 

“We would then need to gather union cards for the entire district while [Starbucks] knew about it. Obviously, that would be a much higher hurdle,” says Mughal.

The NLRB dismissed that request in Buffalo, stating the company raised “no substantial issues warranting review,” and elections were allowed to proceed. By continuing to file complaints as more stores petition for elections, Starbucks has been able to slow the movement. On Feb. 16, a ballot count that was scheduled at a Starbucks in Mesa, Ariz., was postponed because the NLRB has yet to issue a decision on the company’s pending request in that region. The same thing happened this week as three additional stores in Buffalo sought to hold their own elections.

A slower campaign gives a company more time to disseminate its own messaging around unionization, extolling corporate benefits and the merits of direct communication between employee and employer. 

“The decision on how to craft that messaging is very personal,” says Genaira Tyce, a management-side lawyer at Akerman, a Miami-based law firm. “Clients assess what their own core institutional organization values are, and they craft a message to employees based on those things.”

A messaging campaign that focuses too heavily on a union’s negative impacts or engages in mudslinging tactics can “give the impression to employees that an employer either doesn’t know the desires of its employees, doesn’t care about the desire of its employees, or isn’t really listening to its employees,” Tyce says. 

The same goes for messaging campaigns designed to incite fear among employees. More often than not, those kinds of campaigns only “reinforce the notion for employees that they need union protection.” 

In terms of its saturation and emotional appeal, corporate union-avoidance messaging is typically “very effective,” says Dichner.

Starbucks released its own anti-union website in February, which explicitly asks partners, the company’s term for employees, to vote “no” in any union elections. “We don’t believe having a union will meaningfully change or solve the problems you’ve identified in your stores,” the site reads. “We know we aren’t perfect, but we believe our challenges are best addressed by working together.” The site goes on to list the benefits that Starbucks workers have access to: health insurance, fertility benefits, parental benefits, and Spotify Premium, among others. 

For pro-union supporters, the Starbucks’ campaign may still look like union-busting, a claim Starbucks spokesman Reggie Borges categorically denies. “Our partners have asked for details on the process of unionization, and we are doing our part to ensure they are informed,” he said in a statement provided to Fortune. “We respect our partners’ rights to organize.”

The most dramatic step a company can take in an effort to shut down unionization is to terminate the workers who are involved in organizing. When Mughal was following the Buffalo campaign with her coworkers, she says that some “would joke around by saying the word ‘union’ just to scare each other, as if it was something you would immediately be fired for.” 

“That’s not an unfounded fear,” she says. Earlier this month, seven pro-union workers at a Starbucks location in Memphis were terminated over alleged workplace policy violations. At the start of the pandemic, Amazon fired Staten Island warehouse worker Christian Smalls, now president of the Amazon Labor Union, on the same day that he staged a walkout to protest unsafe working conditions. The company alleged that Smalls had violated social distancing rules.

Repercussions are relatively weak for employers who violate the NLRA. A company might be required to rehire an unfairly terminated worker with back pay, but not until the NLRB has conducted an investigation. 

After voting yes: negotiating a first contract

If workers vote in favor of unionizing, the next step is to negotiate a first contract with their employer—a process that can take months or even years. 

In a letter addressed to Starbucks employees after December’s vote to unionize in Buffalo, Rossann Williams, the company’s executive vice president, president of its North America operations wrote: 

“From the beginning, we’ve been clear in our belief that we do not want a union between us as partners, and that conviction has not changed. However, we have also said that we respect the legal process. This means we will bargain in good faith with the union that represents partners in the one Buffalo store that voted in favor of union representation.”

Under the NLRA, workers have 12 months to negotiate their first contract. After those 12 months, some employers will attempt to inspire a union decertification campaign among workers, using the previous 12 months as evidence that forming a union was a waste of time since no contract was reached. 

A 2021 study by Bloomberg Law found that it takes an average of 409 days for newly organized workers to reach a first contract with their employer. 

“Unless you get the first contract, it really doesn’t matter if you won,” says Smith.

Will Starbucks unionization succeed?

A company that is “prime for unionization,” says Smith, is one with poor corporate communication and whose workers feel that their safety and well-being are not a concern.

But what happens when a company like Starbucks, which leads its industry in terms of wages and benefits, faces a growing unionization movement?

Starbucks emphasizes a mutually beneficial relationship between its corporate operation and hourly workers. But the workers seeking to unionize argue there’s a huge power imbalance between executives who earn multimillion-dollar salaries and hourly workers who, according to Mughal, are “scheduled outside their availability and then told that they have to deal with it.” 

“I think there’s a bigger conversation that’s starting to be had about having equity in the workplace and being treated fairly, which don’t come with a specific ask,” says Tyce. “I think a lot of it is being driven by younger people in the workforce. They have different expectations of what the working environment should look like and the comfort it should provide.”

As of this writing, over 100 Starbucks stores have filed petitions with the NLRB to hold elections, with more joining the movement every week. “The more [stores] that can get a victory notched early on, the stronger the possibility is that they can build enough influence [to negotiate a first contract],” says McAlevey. 

She says the Starbucks unionization movement is playing out at a uniquely optimistic time for workers with regards to federal oversight. It’s unlikely, she thinks, that the NLRB would tolerate extreme anti-union behavior from Starbucks, such as if the company were to close entire stores that were pushing to unionize.

Under the Biden administration, the Senate confirmed Jennifer Abruzzo, former special counsel for the Communications Workers of America (CWA), as the board’s general counsel. She appears to be “very aggressive in protecting worker rights,” says Dichner. 

Still, McAlevey is careful not to give the board too much credit: “Let’s just call the labor board fair right now…not pro-worker, not pro-employer. Just fair, which is all workers have ever needed.”

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