Outlawyered: How Starbucks is trying to stop its workers choosing unions
It has been a remarkable two months for pro-union workers at Starbucks. Over 100 stores have now filed for union representation elections, and the number is growing daily. In response, Starbucks has bombarded workers with anti-union text messages, launched a slick anti-union website, forced workers to attend “captive audience meetings” to tell them that unionization would hurt them individually and collectively, and fired several pro-union workers at a store in Memphis. But Starbucks appears to have been caught napping by the speed with which the worker rebellion has spread from coast to coast since the union, Workers United, first won two out of three elections in Buffalo in December.
Littler to the rescue
So far, Starbucks principle anti-union strategy appears to have been to get its law firm, “union avoidance” behemoth Littler Mendelson, to argue that the union elections should not be conducted on a store-by-store basis, but by clustering multiple stores from a single geographic region. Littler is the world’s largest management-side labor and employment law firm, with over 1,000 attorneys in the United States and annual revenues in excess of $600 million. Littler has specialized in helping employers defeat union campaigns since its creation in San Francisco in the 1940s. Arthur Mendelson, one of the firm’s founding partners, once explained its approach to union campaigns, “Our clients pay a lot of money…. If they want aggressiveness, they are entitled to it”. Littler was one of several law firms boycotted for its “union-busting activities” by law students at several leading universities in the 1980s and 1990s , and in the late 1990s, the Washington Post reported that, “Among unions, the firm is infamous for using the intricacies of labor law to thwart organizing and, if unions win elections, to delay the bargaining indefinitely.” Littler has also advised clients to call the police to remove union organizers if necessary, but at Starbucks, there are no union organizers — the campaign is based on self-organizing by the workers.
Thus far, the National Labor Relations Board (NLRB) has rejected the arguments of Littler lawyers against store-by-store elections; NLRB case law has almost always presumed a single store bargaining unit in the retail food sector, and the Biden NLRB has favored smaller bargaining units. But Starbucks and Littler still have significant incentive to fight the union’s petitioned-for bargaining unit.
Indeed, a much-anticipated vote count at a Starbucks store in Mesa, Ariz., was postponed Wednesday after Littler attorneys again requested that the full NLRB review the Regional Director’s order for a single-store bargaining unit. This tactic reflects Starbucks’ anti-union strategy of using its legal might — with several dozen highly-paid Littler attorneys currently working on the case — to undermine workers’ efforts to get free and fair union elections.
So, what’s the thinking behind Starbucks’ anti-union strategy?
For Anti-Union corporations, time is on your side
First, forcing the NLRB to reconsider the bargaining unit each time workers file a union petition eats up time and delays elections. Even if Littler believes the NLRB will not reconsider the appropriate bargaining unit, the marching orders given to its Starbucks attorneys might involve throwing mud everywhere to drive up the unions’ costs and frustrations. Challenging the bargaining unit can be a potentially potent anti-union tactic regardless of any likelihood of success. Win or lose, Littler delays the election and has longer to run its anti-union campaign. NLRB data demonstrates the greater likelihood of a union election loss if there is a lengthy delay because pro-union workers lose momentum, and employer harassment and worker turnover both increase. As one prominent union avoidance law firm infamously advised its clients facing union elections, “time is on your side“.
The Biden NLRB supports worker choice
Second, it’s possible, though unlikely, that organizational variations among Starbucks stores in certain regions could persuade the NLRB to rule a different way. Facing the prospect of thousands of single stores, 20-30 employee units over which Starbucks would have to bargain, Littler might think it can still make a case for city-wide units or something else other than single stores. But that’s a long shot with the Biden board, and it seems more likely that — absent a radical change in its composition after 2024 presidential election — the NLRB won’t change course, even if the union continues to win single store units. Of course, that would not prevent the union and Starbucks voluntarily agreeing to consolidate single store units into wider units later on for collective bargaining purposes.
Try, try again at the courts
Third, in theory, a federal court could still overturn the NLRB’s single store determination. To appeal these unit determinations through the courts, Starbucks must refuse to bargain with a certified union. If it were to do so, there is then what is called a test of cert case: the union files a refusal to bargaining Unfair Labor Practice charge, which goes quickly through the NLRB, without a hearing or trial, until a final order finding a refusal to bargain. Starbucks could then seek review of the issue in the Court of Appeals, at which, historically, employers have gotten more favorable decisions than pro-union workers. But the NLRB can maintain its position until it is overruled by the U.S. Supreme Court. Moreover, any court ruling would likely not be retroactive, and thus the union would hope that some proceedings are closed by the time the Court were to rule. Starbucks could challenge the bargaining unit in other ways, but that would be more complicated. Thus far, Starbucks HQ has promised to bargain with unionized stores, but it may still decide to test a certification at some later point.
Starbucks knows that, were it to allow employees a free choice, they would form unions in droves, which explains its willingness to spend millions of dollars on Littler Mendelson lawyers in a desperate effort to stop a fair vote. The Biden NLRB must stand up to its lawyer-driven campaign to gerrymander the composition of union elections.
John Logan is Professor and Director of Labor and Employment Studies at San Francisco State University.
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