Portside

With more than 340 victories at Starbucks stores across the US, the campaign to organize the coffee chain’s workers is one of the most successful union drives in a generation. But Starbucks’ fierce union-busting campaign has badly slowed its momentum and exposed deep flaws in US labor law that threaten other promising unionization efforts.

Two years on since workers at a Buffalo Starbucks started the first successful campaign to form a union at a company-run store, labor experts say the coffee chain’s aggressive union-busting is shining a harsh light on the shortcomings of the National Labor Relations Act (NLRA) and how that 88-year-old law which governs unionization campaigns is proving far too weak to stop a powerful, multibillion corporation from using an arsenal of illegal tactics to stifle a highly promising union drive.

Many labor experts say the unionization campaign at Starbucks has done more than any other effort to inspire union drives, whether at Trader Joe’s, Apple or elsewhere, but if Starbucks succeeds in quashing its baristas’ organizing efforts and prevents them from ever getting a first contract, that would be a major symbolic and substantive blow to the hopes for a union rebirth in the US.

Even strong union supporters admit that Starbucks’ “union avoidance” tactics have severely cut into the union’s momentum and win rate.

“Starbucks has figured out an ingenious plan to get around labor law, which is: break so many labor laws so fast that the National Labor Relations Board simply can’t keep up in enforcing the law,” said Jaz Brisack, a fired barista who worked at the first company-run Starbucks – the Elmwood Avenue store in Buffalo – where workers voted in favor of unionizing.

The regional offices of the National Labor Relations Board (NLRB) have brought 100 separate cases against Starbucks – an extraordinarily high number – which together allege more than 1,000 illegal actions, many of them in retaliation against workers for unionizing: from closing stores because they had unionized to reducing workers’ hours after their stores unionized. The NLRB has also filed an unusual nationwide complaint accusing Starbucks of refusing to bargain at 163 unionized stores across 28 states.

All told, rulings by various judges and the five-person labor board have ordered reinstatement of 28 Starbucks workers they found to have been illegally fired in retaliation for union activity. Dozens more pro-union baristas are awaiting rulings about whether they, too, were fired illegally – the NLRA prohibits employers from retaliating against workers for backing a union. Their union, Starbucks Workers United, asserts that nearly 200 workers have been fired in retaliation for union activity.

“If Starbucks had not engaged in this ferocious, unlawful campaign, they would have 3,000 unionized stores by now, not 300,” said John Logan, a professor of labor studies at San Francisco State University and an expert on corporations’ anti-union strategies. The number of unionization petitions filed by Starbucks workers has plummeted from 71 a month in March 2022 to around a dozen a month today.

Logan said the NLRA aims to let workers freely choose whether they want a union to represent them. “The problem,” he said, “is companies like Starbucks have turned it into a choice by the companies, not by the workers.”

When Starbucks’ former CEO, Howard Schultz, testified before a Senate committee in March, he asserted that the company had not broken the law even once in battling against the union. Starbucks continues to maintain that position, asserting that any pro-union worker who was fired was not dismissed for union activity, but for violating company rules, such as arriving late to work.

abor leaders often complain that the NLRA’s weaknesses give a bright green light to anti-union companies to break the law. The NLRA doesn’t allow for any fines, not even one dollar, if a company is found to have, for instance, illegally fired the four workers leading a union drive. Nor can a company be fined for closing a store or operation in retaliation for its workers unionizing. When the NLRB rules that a company broke the law by refusing to bargain, it can’t order the company to reach a first contract. All it can do is order the company to return to the bargaining table, but when that happens, many companies resume doing everything they can to avoid ever reaching a first contract. Even though the first Starbucks store unionized 20 months ago, the company hasn’t reached a contract with workers at any of its 340-plus unionized stores.

“The remedy that’s ordered for a failure to bargain in good faith is an order to bargain more. That just doesn’t work,” said Benjamin Sachs, a labor law professor at Harvard.

In response to the Guardian’s questions, Starbucks said it “is committed to progress negotiations towards a first contract”. The company accused the union of dragging its feet in bargaining, saying the union “has only responded to 25% of the more than 465 bargaining sessions that Starbucks has proposed for individual stores”.

The union responded that Starbucks is the one under scrutiny for refusing to bargain. The union added that it hasn’t responded to many of Starbucks’ requests to bargain because the company has sought to “impose illegal conditions” intended “to prevent us from designating members of our own bargaining teams”. The union says Starbucks has failed to make even one counterproposal to its many bargaining proposals.

“Starbucks is proof that a concerted effort by a corporation to delay and violate the law too easily succeeds under the rules of the game we have today,” Sachs said. “We need new rules of the game.

“Starbucks isn’t the only one to blame,” he added. “The legal system bears responsibility for enabling corporations to act this way.”

Criticizing the system’s delays, Sachs noted that after a fired worker asks the NLRB for reinstatement, it can take up to five years of litigation – including a decision by an NLRB administrative law judge, then an appeal to the five-person labor board, then an appeal to a federal circuit court of appeals – before a worker wins reinstatement, and by then the union drive has often fallen apart because workers were frightened off or discouraged from joining.

“You can have all the labor protections in the world, but if you don’t have an effective enforcement and remedies scheme, then it’s virtually worthless,” said Wilma Liebman, who served as chair of the NLRB under Barack Obama.

Schultz and his company continue to assert that Starbucks has not violated the law even though judges have ruled that Starbucks illegally closed a store in Ithaca in retaliation for unionizing; illegally threatened workers in Seattle, Los Angeles, Chicago, Minneapolis and Buffalo with loss in pay and benefits because of union activity; illegally reduced the hours of Wichita baristas; illegally spied on workers in Pittsburgh; and illegally called police because baristas in Kansas City had congregated outside their store.

“Howard Schultz will say to the grave that Starbucks hasn’t broken the law, but that’s factually inaccurate,” San Francisco State’s Logan said, pointing to the many rulings that Starbucks has violated the law.

Starbucks has appealed ruling after ruling that found it has acted unlawfully. Schultz maintained that just because a trial judge had found illegalities doesn’t mean Starbucks did anything wrong – that finding might be overturned on appeal.

Acknowledging that appeals can last years, Starbucks said: “The process for reviewing the merits of these allegations is multi-step, includes several layers of review by the NLRB and the federal court system, and usually takes years to complete. Where claims have been filed against Starbucks that we believe are unfounded, we continue to defend the company.”

Starbucks workers see a clear objective behind Starbucks’ retaliatory moves: to frighten and even terrorize workers – to make workers too scared to support or work for unionization. Pro-union workers further assert that what they see as Starbucks’ refusal to bargain aims to deter workers at additional stores from unionizing by sending a loud message that if they unionize, there’s no guarantee their store will negotiate a first contract anytime soon to deliver better wages and benefits. Workers at many stores allege that after their stores voted to unionize, management cut back on their weekly hours (and weekly pay) and cut their store’s staffing to make their jobs more stressful and to show that unpleasant things happen if they unionize.

“Starbucks has taken a scorched-earth policy to target union leaders and union stores for retaliation,” said Richard Bensinger, an adviser to the Starbucks’ unionization drive. “Starbucks is starving out union supporters. They’re cutting their hours and starving the stores by cutting staff. They’re starving the unionized workers by not giving them credit card tips. They’re doing everything they can at union stores to be as nasty as they can to undermine the union, to say to non-union workers, ‘‘Look what’s happening there.’ In some cases, they’re even closing unionized stores, like in Ithaca.”

Starbucks closed all three of its stores in Ithaca, New York, the first city in the US where every Starbucks was unionized. The company said the closings were for business reasons and had nothing to do with the union. But Kolya Vitek, a barista who worked at two of the Ithaca stores, said: “The closures are very blatantly union-busting. There is no reason they needed to close those stores.” Stephanie Heslop, another barista in Ithaca, added: “They wanted to burn the union to the ground here.”

After nearly four years as a barista, Quinn Craig led the effort to unionize a Starbucks in San Antonio, Texas. “As soon as we filed our petition, I started preparing to get fired. I knew that it was coming,” said Craig, who often wore a cap saying “Scary Union Organizer”. “I saw that Starbucks was firing lead organizers in stores all across the country. By the time we won our election, we saw 30 or 40 worker-organizers fired across the country.”

The San Antonio organizing drive was fueled by dismay with constantly changing work schedules and what workers said was systematic understaffing, which made their jobs far more stressful. “We also wanted to advocate for a better benefits system,” Craig said. “More than half the people at our store didn’t qualify for all the benefits that Starbucks is bragging about.”

On 23 June 2022, the San Antonio workers voted 10 to 6 to unionize. Soon after, workers said, Starbucks began reducing their weekly hours and pay – a move many saw as punishment for unionizing and a stratagem to get them to quit.

On the first anniversary of their union victory, the store’s workers walked out, protesting what they said was understaffing. That same day, Craig was fired. “They fired me on the one-year anniversary of our store winning a union election,” Craig said. “They fired the lead organizer on the day we were celebrating. That’s villainous. They’re not sneaky about their retaliatory actions.”

To explain the firing, Starbucks said Craig had failed to secure the store’s cash or set the security alarm before the walkout. “I called the manager to say we were walking out,” Craig said. “Her response was ‘OK’ and [she] hung up” – without giving any instructions.

Alleging unlawful retaliation, Craig has asked the NLRB for reinstatement. Craig says Starbucks’ tactics – the firings, closings and reduced hours – “have really had a chilling effect. I personally saw several stores in my region lose interest in unionizing. Without all the union-busting, we could have had double the number of stores in my region organized.”

Many baristas say one Starbucks strategy in particular has discouraged workers from unionizing. In May 2022, Schultz announced that Starbuckswould give certain raises and benefits to workers at its more than 9,000 non-union stores, but not offer those raises and benefits to its unionized workers. Starbucks insists it would be illegal to impose any raises or benefits on its unionized stores without first negotiating about them, but the NLRB’s general counsel asserts that this policy constitutes unlawful discriminationagainst Starbucks’ unionized workers. Under this policy, Starbucks has given its non-union workers, but not its unionized ones, a more relaxed dress code, increased training, faster sick leave accrual and, most important, credit card tipping. (Workers at the first few Starbucks stores to unionize had asked early on for credit card tipping.)

Baristas say credit card tipping can boost pay by $5 an hour, often meaning a 30% pay increase. Starbucks’ refusal to give many raises and benefits, including credit card tipping, to workers at its unionized stores has fueled decertification efforts at more than a dozen stores. Decertification is a process to vote out the union. Pointing to the denial of credit card tipping, San Francisco State’s Logan said: “Starbucks is offering the workers a $5-an-hour bribe to vote out the union.”

Federal law prohibits companies from aiding decertification efforts. Starbucks has referred workers interested in decertification to the National Right to Work Legal Defense Foundation, a group long funded by rightwing billionaires, including the Koch brothers. But the coffee company says it hasn’t joined in that foundation’s efforts to assist decertification petitions. The NLRB has blocked several of the decertification petitions because it says Starbucks had failed to bargain in good faith, preventing workers from getting a fair shot at reaching a first contract. Starbucks has criticized the labor board for not giving its workers a free choice to decertify the union – a claim many workers ridicule, saying that Starbucks, with its aggressive union-busting, hasn’t given its workers a free choice on whether to unionize.

Labor experts have long proposed ways to revamp the NLRA so that it truly discourages illegal actions by anti-union employers. The Protecting the Right to Organize Act (Pro Act), which President Biden backs, but Senate Republicans have blocked, calls for substantial fines against companies that fire pro-union workers or commit other illegal actions.

“Unless Starbucks is made to pay a real price for its illegal conduct, there will be no reason for it not to violate the law,” Logan said. “I would like to see a discussion of having criminal penalties for CEOs whose companies engage in egregious unlawful practices.”

Many labor leaders say that to prevent years of delay before negotiating a first contract – that is, if one is ever negotiated – the NLRA should provide for compulsory arbitration if the two sides fail to reach a first contract within a few months. The Pro Act calls for mandatory arbitration. Some labor experts look to Alberta, Canada, as a model; there, if the two sides fail to reach a first contract within 90 days after bargaining begins, the dispute goes to a neutral arbitrator who determines the contract’s provisions.

But every time Democrats have pushed to amend the NLRA to make it easier to unionize, Republicans have used filibusters to block the legislation. That happened under presidents Johnson, Carter, Clinton, Obama and Biden.

Short of overhauling the NLRA, union supporters say the NLRB should obtain a nationwide injunction to order Starbucks to cease and desist from firing pro-union baristas. The NLRB’s general counsel, Jennifer Abruzzo, has repeatedly sought such an injunction, but judges have thus far failed to grant it, evidently not convinced that Starbucks is systematically taking illegal actions.

Starbucks baristas applauded a NLRB decision from last Friday that some labor experts say could go far to discourage companies like Starbucks from violating the law when battling against unionization. Under the board’s decision, if a majority of workers sign cards saying they want to unionize and the employer insists on holding a union vote and then is found by the NLRB to have broken the law in fighting unionization, the labor board will order the company to grant union recognition based on the signed cards.

But labor experts fear that conservative, corporate-friendly federal judges may overturn the NLRB’s decision.

,With labor leaders complaining that Starbucks’ illegalities continue unabated, many pro-union workers are pushing for more militant action to get Starbucks to stop the firings and negotiate a first contract. Some have called for more strikes or civil disobedience outside Starbucks cafes or a nationwide consumer boycott – or a combination of all three strategies.

Despite Starbucks’ aggressive tactics, many workers remain optimistic. “They’re doing everything they can to crush our organizing effort. What they’re doing is terrible, closing stories and firings,” said Casey Moore, a union spokesperson and fired Buffalo barista. “But every day we still have stores filing for elections and workers emerging with new energy.”