News & Commentary

July 24, 2022

Kevin Vazquez

Kevin Vazquez is a student at Harvard Law School.

After winning an election in Cleveland, Ohio on Friday—the state’s third unionized location—Starbucks workers have officially won 200 recognition elections with the NLRB, despite the company’s fervent union-busting campaign and anti-union hostility, in an extraordinary movement that has swept across more than 30 states in little more than six months. In total, workers at 316 Starbucks locations have filed for elections with the NLRB (some of which have yet to be conducted), and the union’s success rate—more than 80 percent, 52 of which have been unanimous—has been outstanding. Starbucks’ workers have also been remarkably militant: in addition to the hundreds of ULPs they have filed with the NLRB, they have regularly struck, walked off the job, and taken other conspicuous employment actions to protest management’s “union-avoidance” conduct. In New York City last week, for example, more than 100 workers, joined by local community activists and labor organizations, rallied outside a Starbucks location to demand the reinstatement of a worker fired for union activity after lodging a complaint with the NLRB regarding the matter, merely one of many instances of militant labor actions by Starbucks workers and their union in recent months.

Notwithstanding their growing movement power and organization, however, Starbucks workers have yet to win a first contract with the company at any location, and the looming prospect of that immense task casts shade over any premature exultations. Section 8(a)(5) of the NLRA, buttressed by section 8(d), imposes a statutory duty on an employer to bargain in good faith with a duly recognized union representing its employees. This duty, however—at least as currently construed by courts and the NLRB—is largely toothless, and, while not entirely ineffectual, can be easily manipulated and often outright evaded by employer intransigence and delay. Although, as Jason detailed for OnLabor earlier this month, the NLRB has many tools available for it to counter such bad-faith employer conduct, it has thus far been reluctant to utilize them. (Although, as Jason further explains, that may change in the near future.) In any event, Starbucks workers face a steep uphill climb as they begin bargaining with the company, and a sober examination of their prospects should temper any early celebrations. A favorable first contract will require continued organization, militancy, and perseverance on the part of the workers—fortunately for them, however, all of which they have already demonstrated possessing in droves.

Starbucks workers’ highly visible organizing efforts have coincided with—and undoubtedly contributed to—an uptick in union recognition activity throughout various industries across the country, though particularly in the low-wage service sector where union organizing has often proven so vexatious. Last week, the NLRB issued a press release stating that union election petitions were up 58% in the first three quarters of 2022 as compared to 2021—by May 25, 2022 petitions exceeded the total number filed in all of 2021. (The agency also noted, of course, that this marked swell in its workload comes at a time of “critical funding and staffing shortages”—the NLRB has received the same congressional funding for nearly ten consecutive years, despite rising costs and increasing responsibilities, and its field staffing levels have dropped by 50 percent in the last 20 years. This dire shortage has imperiled the agency’s ability to effectually comply with its statutory mandate to protect workers’ right to self-organization and collective bargaining.) Last week, for example, workers at Lululemon—a popular athletic apparel retailer–filed for a union election at a store in Washington, D.C., one of the first union elections in the apparel retail sector, which has traditionally been virtually impervious to organizing efforts.

On the West Coast, a port worker union—the International Longshore and Warehouse Union (ILWU)—is fighting continued job-replacement automation at ports and terminals, in a fractious battle that could have important implications not only for the labor movement but for supply chains across the world. The current ILWU contract, which covers about 13,000 longshoremen employed at 12 ports across the West Coast for the Pacific Maritime Association (PMA), expired on July 1, and bargaining has stalled because the PMA desires to expand its use of remote-controlled cranes to transfer containers from ships to landside stacks and yard tractors and then back again. The PMS claims that this will increase productivity and efficiency and reduce greenhouse gas emissions; the ILWU claims that it will erode labor standards and lead to job loss, and its position is buttressed by an Economic Roundtable report released late last month that disputes many of the PMS’s claims and concludes that the continued introduction of this nascent technology will be “a lose-lose issue for both workers and the American public.” It continues: “Automation of shipping terminals isn’t cost-effective or more productive, but it enables foreign shipping giants to avoid the inconvenience of dealing with American workers and the union that represents them.” Understandably, port operators want to boost efficiency at high-volume ports that have experienced long wait times and limited cargo capacities in recent years. But the ILWU—and the Economic Roundtable report—claim that the implementation of automated container handling and transporting equipment merely risks further destabilizing an already strained and precarious global supply network, which has already contributed to shortages and rising inflation worldwide in the last year.

Even setting aside these supply chain concerns, this dispute could have far-reaching implications for the broader labor movement. The ILWU is concerned that the technology will be used to eliminate its members’ jobs, and despite the PMS’s speculative contention that existing workers could be protected through reskilling or upskilling such that the net job loss would be virtually zero, the ILWU seeks to wholly foreclose the possibility of any such eventualities through the current contract negotiations. This issue—an employer’s duty to bargain over the elimination of bargaining unit work, and particularly the implementation of job-eliminating technology—is a contentious one that has vexed labor lawyers, academics, and officials alike, and many courts still often struggle to determine whether an employer’s decision to introduce job-replacing automation is a mandatory or permissive subject of bargaining under section 8(d). In any event, this issue, like many others, is ultimately resolved more by the practical strength of either side in the crucible of bargaining than by abstract theories of law, and it is yet to be determined whether ILWU has sufficient strength and organization to prevail.

In more somber news, Amazon workers—including Amazon Labor Union (ALU) officials—continue to demand answers following the death of a worker in a New Jersey Amazon warehouse during “Prime Day” earlier this month, which Travis chronicled for OnLabor last week. Chris Smalls, president of the ALU, said on Thursday that, according to his sources, the worker had been “unconscious on the floor for over 20 min[utes],” and the company delayed in calling the emergency authorities for “nearly an hour.” Even though the worker had warned management of chest pains, Smalls said, the company kept him working as a “waterspider”—a job that requires rapidly carting goods to and from various locations inside the large warehouse—and refused to allow him to take a break despite the extremely hot conditions inside the facility. Two Amazon employees from inside the warehouse, speaking anonymously to NBC News, said that the worker had died on a floor known for its high temperatures. OSHA has reportedly been alerted about the incident, and Amazon itself alleges to be investigating, but it is unclear what the outcome of those investigations will be.

Finally, on that note, for those looking for a weekend read, a New York Magazine profile of Chris Smalls published details his background, his tenure at Amazon, his creation of the ALU, the union’s meteoric rise following its Staten Island victory in April of this year, and its ongoing struggle against the ecommerce behemoth in the aftermath of the election—which includes its continuing efforts to secure a first contract of its own, foreshadowing the plight that faces Starbucks workers. In so doing, it also provides a window into the contemporary world of low-wage service work and the successes, failures, and opportunities of the modern labor movement, including an exploration of many of the obstacles imposed by the NLRB regime before and after recognition elections. It is an interesting piece that is worth a read.

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