In today’s news and commentary, lots of Starbucks organizing: 100 Starbucks locations unionized, commentary on the Workers United organizing model, and NLRB hearings on Starbucks ULPs; and separately, a lawsuit against the DOL for its March guidance asking 401(k) plan administers to exercise caution before offering cryptocurrency investments.
100 Starbucks locations have now unionized. When Law360’s Employment Authority’s Starbucks Unionization Tracker was launched just over a month ago, that number was at 31—which at the time seemed like quite a lot. As of Thursday night, there are nearly 300 active cases of locations with workers that have taken official steps to unionize, such as by filing for a union election. Workers United, the SEIU-affiliated labor union organizing starbucks shops, has set the goal of reaching 1,000 petitions by the end of the summer months. The win-rate of Starbucks elections throughout the country has been 87%—much higher than the national average of 70%.
Given its success and uniqueness, the Workers United organizing model is worth inspecting. For some background, at least in more recent years, many labor unions have turned away from, or at least expressed caution towards, “hot shop” organizing: where workers at the shop begin organizing and then contact a union to ask for their support. In her book A Collective Bargain, Jane McAlevey noted that “hot shop” organizing tends to “fail, despite the agitation (‘heat’) for a union.” When workers in a hot shop contact a union to file for an election, in the time leading up to the actual election, the employer tends to contact union-busting firms that have the process down to a science—including many tactics that they can get away with due to the lack of meaningful penalties for violating labor law. In contrast, smarter unions have generally opted for strategic organizing: organizing by industry or geography in order to build focused leverage against a company that the union identifies as a strategic target.
So, is Workers United an example of “hot shop” organizing? Or strategic organizing? On the one hand, Workers United has a strictly “hot shop” model: workers at Starbucks locations reach out to Starbucks Workers United, where they get put in contact with worker-organizers who can provide them with resources and trainings. If you go to their website, the first thing you see is: “WANT TO ORGANIZE AT YOUR STORE? GET IN TOUCH!” It is ultimately workers who organize on their own shop floors and drive the campaign to victory, with support from the union. Those victories are then heavily publicized, which leads to workers at more Starbucks locations reaching out and attempting to unionize. On the other hand, Workers United is clearly organizing within a strategic industry: strategic because, if anything, Starbucks organizing seems to garner a lot of media attention (perhaps because of Starbucks’s well-known brand name and its popularity among the class of mostly college-educated liberals who report on labor activities). And unlike Amazon’s large warehouses, the smaller Starbucks shops arguably makes forming a myriad of smaller unions somewhat more manageable, even when there is significant opposition (which is corroborated by data showing that union win rates are higher for smaller bargaining units).
By combining “hot shop” and strategic organizing, Workers United been taking the best of both worlds. The organizing campaigns are strategic and industry-specific, but they also capitalize on the “heat” for unionization that hot shops are known best for. Like in the Amazon win in Staten Island at the end of last April, the localized worker-led character of the Starbucks struggles makes it difficult for the employer to break up the union effort by framing the union as outsiders who don’t know what’s best for the workers. And the more the momentum grows, the harder it becomes for Starbucks to argue that all the workers who have unionized have done so to make the company worse. As Sharon Block wrote last week, workers often organize unions because they care about improving their companies, not because they want to see them fail. “By choosing to unionize, Amazon and Starbucks workers are saying that even when they have a choice to go somewhere else and get more pay, better benefits and/or better working conditions, they would rather stay and fight to make their companies—and not just their own situations—better.” Workers United leans into this fact in its messaging, writing on their website: “We all have one thing in common—we want the company to succeed and we want our work lives to be the best they can be” and “We are not anti-Starbucks. We are Starbucks!”
On the legal side of Starbucks organizing, the month of June will be home to NLRB hearings on unfair labor practices filed by Workers United against Starbucks, as well as a few filed by Starbucks against Workers Untied. As of today, the NLRB has over 170 open cases accusing Starbucks of violating labor law including through acts of retaliation, surveillance, and anti-union threats.
In other news, the Department of Labor (DOL) was sued in federal court yesterday for its March guidance urging 401(k) plan fiduciaries to “exercise extreme care before they consider adding a cryptocurrency option” to the plan’s investment menu. The DOL guidance cited the fiduciary duties under the Employee Retirement Income Security Act (ERISA), which include the requirement that fiduciaries “must act solely in the financial interests of plan participants” and, as the Supreme Court has determined, to “conduct their own independent evaluation to determine which investments may be prudently included in the plan’s menu of options.” Because cryptocurrencies are “speculative and volatile investments” that “all too easily attract investments from inexpert plan participants” with “little appreciation of the risks the investments pose,” among other things, the DOL noted that it “has serious concerns about the prudence of a fiduciary’s decision to expose a 401(k) plan’s participants to direct investments in cryptocurrencies.” ForUsAll, one of the first plan administrators to add cryptocurrency investments to its menu for plan participants, sued the DOL, claiming that the guidance violated the Administrative Procedure Act (APA). The complaint argues that the DOL did not follow notice and comment procedures required under the APA, that “cryptocurrency is a widely accepted asset class,” and that the guidance is in tension with Biden’s “direct[ion] to federal agencies to work together to ‘promote’ the development and use of cryptocurrency.” Back in March, the DOL’s Acting Assistant Secretary for Employee Benefits, Ali Khawar, disputed the claim that the guidance constituted a ban on cryptocurrency.