By: Kathryn Kelly
The National Labor Relations Act (“NLRA”) ensures private-sector employees have the right to collectively bargain.[1] To that end, it established the National Labor Relations Board (“NLRB”), an independent agency meant to protect employees’ right to form a union and investigate violations of the NLRA.[2] Workers at various Starbucks locations across the country have been trying to unionize under the protections of the NLRA, with the recent successful efforts to unionize originating in August 2021.[3] Starbucks’ pushback against organizing illuminates the need for increased protections under the NLRA. The Protecting the Right to Organize (PRO) Act would institute some of these much-needed protections, increasing the bargaining power of workers and imposing penalties on employers who violate the law.[4]
Starbucks’ public position is anti-union.[5] In an attempt to quash union activity, Starbucks attempted to replace long-time pro-union employees for newer, anti-union replacements. [6] They achieved this by implementing a country-wide reduction of hours to push out long-time employees and using policies previously not enforced as a pretext for firing pro-union employees.[7] Starbucks Workers United, the union representing Starbucks workers, filed twenty-three charges with the NLRB, alleging unfair labor practices related to Starbucks’ anti-union activity since September 2021.[8] Even if the union is successful in pursuing unfair labor practices, the Act does not proscribe fines for employers who violate the Act.[9] Moreover, Starbucks has utilized intimidation tactics that the Act does not outlaw—including captive audience meetings, where it requires workers to convene and be lectured with anti-union activity.[10]
Despite Starbucks’ intimidation tactics, employees are still managing to successfully unionize. Six stores have voted to unionize since August 2021.[11] More than 100 stores have filed to hold union elections—workers can file an election petition with the NLRB to decide by majority vote whether they will form a union or not. [12] The success in union organizing—in the face of staunch opposition and gaps in protections—does owe credit to the protections that are afforded under the NLRA. In July 2021, an Administrative Law Judge found that Starbucks retaliated against two workers who tried to organize, ultimately firing them.[13] In another case, the NLRB also ruled against Starbucks in a case where the corporation argued that multiple stores together, rather than single stores, be bargaining units, in a bid to weaken organizing efforts.[14]Recognizing that it is a heavy burden to overcome the single-store bargaining unit presumption, the NLRB ruled in favor of Workers United.[15]
While these rulings have been positive, reform is still needed for the NLRA. There are several gaps in protections under the NLRA that the PRO Act would fill. Administrative Law Judges cannot order Starbucks to pay punitive damages because the NLRA does not permit them.[16] Currently, the only remedies available to employees include make-whole remedies like back-pay, reinstatement, and mandated informational postings by employers.[17] The PRO Act calls for civil penalties for violations of the NLRA up to $50,000 per violation.[18] It strengthens employees’ bargaining power while on strike by denying employers the ability to permanently replace strikers.[19] The PRO Act was passed by the House of Representatives last year—with Democrats and five Republicans supporting[20]—but is unlikely to pass the Senate as its narrow Democratic majority could not overcome the filibuster.[21] Despite the apparent lack of support in the Senate, the additional protections afforded to employees in the PRO Act are vital and should be incorporated into the NLRA.
[1] See 29 U.S.C.S. §§ 151-59 (LexisNexis 2021) (recognizing that the right to collective bargaining benefits commerce as a whole).
[2] 29 U.S.C.S. § 157 (LexisNexis 2021) (granting the right to self-organize to workers); Introduction to the NLRB, The National Labor Relations Board https://www.nlrb.gov/about-nlrb/what-we-do/introduction-to-the-nlrb (last visited March 14, 2022) (stating that the NLRB has twenty-six regional offices).
[3] See Jon Skolnik, Starbucks’ union busting campaign is backfiring, Salon (Feb. 24, 2022 5:45 AM EST) https://www.salon.com/2022/02/24/starbucks-union-busting-campaign-is-backfiring/ (describing the efforts of Buffalo Starbucks workers to unionize).
[4] How the PRO Act Will Help Employees Advocate for Improvements at Work, AFL-CIO https://aflcio.org/how-pro-act-will-help-employees-advocate-improvements-work (last visited Apr. 14, 2022).
[5] See Ryan Arbogast, Starbucks Workers United files charges with National Labor Relations Board + a full timeline, WKBW (Mar. 1, 2022 5:52 PM) https://www.wkbw.com/news/local-news/starbucks-workers-united-files-charges-with-national-labor-relations-board-a-full-timeline (listing in detail the charges brought against Starbucks by the union).
[6] See Noam Scheiber, Starbucks Workers at 3 More Buffalo-Area Stores Vote to Unionize (Mar. 9, 2022) https://www.nytimes.com/2022/03/09/business/economy/starbucks-union-vote-buffalo.html (noting that Starbucks’ “union-free” business model had “prevailed for decades” prior to recent organizing efforts).
[7] See Noam Scheiber, Starbucks Workers at 3 More Buffalo-Area Stores Vote to Unionize (Mar. 9, 2022) https://www.nytimes.com/2022/03/09/business/economy/starbucks-union-vote-buffalo.html (noting that Starbucks’ “union-free” business model had “prevailed for decades” prior to recent organizing efforts).
[8] See Arbogast, supra note 5 (noting one tactic of Starbucks to stifle union activity was to repurpose its emergency text system for antiunion messaging).
[9] See Investigate Charges, National Labor Relations Board https://www.nlrb.gov/about-nlrb/what-we-do/investigate-charges (last visited Apr. 14, 2022) (describing the investigatory process of the NLRB).
[10] See What Would the PRO Act Do? Communications Workers of America (Apr. 1, 2021) https://cwa-union.org/news/what-would-pro-act-do#:~:text=Under%20current%20law%2C%20employees%20who,participate%20in%20anti%2Dunion%20activities (stating that the PRO Act would also give the NLRB control to set union election procedures); Skolnik, supra note 3 (arguing that the Starbucks’ antiunion efforts have backfired).
[11] See Arbogast, supra note 5 (pointing out the close vote tallies at recent union votes—8 to 7, 15 to 12, and 15 to 12).
[12] See id. (reporting that a Starbucks’ store in its home city of Seattle are attempting to unionize); Conduct Elections, National Labor Relations Board https://www.nlrb.gov/about-nlrb/what-we-do/conduct-elections (last visited Apr. 14, 2022) (describing the union election process, wherein workers file for an election with the nearest regional NLRB office).
[13] See NLRB Administrative Law Judge Finds Starbucks Illegally Retaliated Against Two Philadelphia Baristas, National Labor Relations Board (July 1, 2021) https://www.nlrb.gov/news-outreach/nlrb-administrative-law-judge-finds-starbucks-illegally-retaliated-against-two (describing how the ALJ ordered Starbucks to cease and desist its retaliation).
[14] See Starbucks Corp. and Workers United, 2022 NLRB LEXIS 65, at *2 (Feb. 23, 2022) (noting the heavy burden of overcoming the single-store-unit presumption).
[15] See id. (ruling against Starbucks’ argument that store managers did not have control over individual branches).
[16] See Starbucks Corp. and Philadelphia Baristas United, et al., 04-CA-252338 (N.L.R.B. June 21, 2021) (finding that Starbucks illegally retaliated against two workers in its Philadelphia branch); Investigate Charges, supra note 9 (noting that the NLRB can mandate a posting by the employer to promise not to violate the law).
[17] Investigate Charges, supra note 9 (stating that the NLRB cannot assess penalties).
[18] See How the PRO Act, supra note 4 (outlining the provisions of the PRO Act, including a requirement that employers disclose how much they spend on union-busting).
[19] See id. (arguing that the PRO Act removes “barriers to worker voice”).
[20] See Ella Nilsen, The House Just Passed a Sweeping and Bipartisan Bill to Boost Unions, Vox (Mar. 9, 2021 8:55 PM) vox.com/22319838/house-passes-pro-act-unions (reporting that the PRO Act passed the House of Representatives with a 225-206 vote).
[21] See H.R. 842, 117th Cong. (2021) (amending the National Labor Relations Act); Eleanor Mueller, PRO ACT Allies Hit the Road, Politico (Dec. 6, 2021 10:00 AM) https://www.politico.com/newsletters/weekly-shift/2021/12/06/pro-act-allies-hit-the-road-799282(reporting that the House passed the PRO Act bill, which is now stalled in the Senate).