These days, a few weeks can be a long time in US labor organizing.
Recent weeks have seen important victories by unions organizing at Amazon and Starbucks. First, the National Labor Relations Board (NLRB) ruled that Starbucks’s decision to exclude workers involved in union organizing from wage and benefit increases was unlawful. Howard Schultz had first threatened to withhold the increases from pro-union workers in early May; this threat, repeated endlessly by store managers and district managers throughout the country, has seriously interfered with the nationwide organizing campaign at the chain.
Over the past several months, the number of new Starbucks stores petitioning for union elections has declined dramatically because of this illegal threat, along with Starbucks’s multiple other unlawful actions. Undeterred by the board’s decision that it had broken the law, Starbucks announced another round of improvements, again only for nonunion stores, in September.
Second, an NLRB hearing officer recommended last week that the regional director dismiss, in their entirety, Amazon’s objections to the Amazon Labor Union’s (ALU) historic election win at the JFK8 warehouse in Staten Island on April 1. Amazon workers who braved the wrath of the company’s anti-union campaign have had to wait half a year, and their election result is still not official. Both decisions are major victories for the workers involved in these union campaigns.
So, great news for the workers engaged in David vs. Goliath fights against lawbreaking multibillion-dollar corporations? Not entirely.
Both campaigns have shown how vulnerable labor law enforcement is to abuse by anti-union corporations with deep pockets. These companies do not fear the board. If one were designing a process that enabled wealthy corporations to undermine this law, this would be it.
Starbucks and Amazon have exploited the quasi-judicial proceedings of the board, effectively putting them on a schedule inconsistent with protecting pro-union workers organizing at hundreds of units, in which “momentum” is a key factor. For example, Starbucks disrupted the Starbucks Workers United (SBWU) campaign by announcing in May that it would deny wage and benefit increases to workers in stores with union activity. The NLRB regional director in Seattle ruled in August this tactic was unlawfully designed to dissuade workers from supporting unionization. Starbucks stated it would contest the decision before an administrative law judge (ALJ) and in September announced another round of benefit improvements, again only for stores without union activity.
Of course, Starbucks’s newfound generosity would not have happened without the SBWU campaign. But this tactic has drastically reduced the number of new stores petitioning for NLRB elections to a trickle. Pro-union workers needed fast action, but the case will take months, if not years, to go through the ALJ, the full NLRB, and then to the federal courts.
Starbucks has also accused NLRB personnel of corruption and bias in Kansas and elsewhere and called for a halt in elections, thus challenging the legitimacy of the process itself. The NLRB currently has well over three hundred open unfair labor practice (ULP) charges against Starbucks, a staggeringly high number. And the company is engaging the board in a bizarre “whack-a-mole” process: it knows that the NLRB is woefully underfunded and understaffed, so the more ULPs it commits around the country, the less capable is the board to hold it accountable for any of its misdeeds.
Amazon is also fighting to the death. After the NLRB hearing officer recommended in August the dismissal of the company’s frivolous objections to the ALU’s election victory (Amazon had objected to the conduct of both the ALU and the NLRB regional director), Amazon shows no signs of respecting workers’ choice. If the hearing officer’s recommendation is accepted by the Phoenix regional director, which is likely, Amazon can then appeal the case to the full board. Assuming it loses there, it cannot appeal election objections to the federal courts, but it can refuse to bargain on the grounds it believes the election was tainted. The NLRB would then need to go to the federal courts to seek enforcement of a bargaining order, so it simply would take longer to end up at the same place.
Amazon CEO Andy Jassy has vowed a long fight, including an appeal to federal courts, because the board will not “rule against itself.” He believes that the company’s fight to overturn the ALU victory “will take a long time to play out.” Starbucks’s Schultz, in a New York Times interview, says he will never engage with the union because it would “lessen” the customer’s experience. Both believe the decision on unionization should be their choice, not that of their employees, and are banking on the final word of anti-union judges. Unfortunately for them, the question is not whether a “third party” might be bad for the customer experience, but whether, under the law, collective bargaining is what their employees want.
Starbucks’s and Amazon’s brazen disregard for the law and disdain for the NLRB should cause us to reassess our notions of fairness in union representation. Starbucks and Amazon are not on the ballot when workers vote; they are voting between union representation and no union. So why should the board treat them as equal partners and thus make it so easy for them to gum up the process? If they are prepared to repeatedly flaunt the law, challenge the legitimacy of the board in the election and ULP processes, and exploit every other opportunity to “throw sand in the gears,” Starbucks and Amazon can effectively “win by losing” before the NLRB.
Starbucks and Amazon behave as if the law does not apply to them. They have contempt for the board’s attempt to enforce the law. They have openly challenged the legitimacy of the NLRB’s elections, even when the country is facing a profound crisis of democracy. The workers’ clear choice in support of unionization is totally meaningless for these companies.
How did the US workplace become such a dismal and lawless dictatorship?