In just four and a half months, Starbucks went from having zero union presence to employees voting to unionize at 32 stores around the country, with dozens of unionization elections occurring weekly. Throughout this process there has been growing tensions between the Starbucks corporation – which has made it clear that direct representation is preferable and that the unions have been disruptive — and union group SBWorkers United, which has accused its parent company of union-busting.
In the latest news, the National Labor Relations board is suing Starbucks for allegedly unfairly firing or retaliating against three union leaders from the company and is seeking injunctive relief and the reinstatement of these employees to the original positions with full pay.
We spoke with Magdalen Bickford, a labor attorney with McGlinchey Stafford law firm based in New Orleans who represents the management side, about the legal complications of this struggle between Starbucks and its unionized employees, including issues of contract negotiation, union busting, unfair labor practices and union elections.
Interim Starbucks CEO Howard Schultz claims that if he rolls out new benefits for employees, he would not be able to do so for unionized stores without contract negotiation. Is that true?
That is absolutely true. In a unionized facility they have a collective bargaining agreement, also called a CBA. You cannot change the terms and conditions of employment for anything good, bad or indifferent unless you bargain with the union. So, even if you decide I'm going to give every employee a million-dollar bonus, you can't do that unless you bargain with the union. It is not fair to assume that if the employer wants to offer something fantastic, the union will say yes. They may have their own reasons for saying no, even though on its face, it looks like a really positive thing.
So, a union becomes a middleman for all interactions between employer and employee?
If a site is unionized it has its own rules. Sometimes they might be able to create some sort of allegation of unfair labor practices in that scenario by saying ‘you’re trying to influence a unionized environment by doing this for our non-union people,’ but that would be a hard road to fight.
Is it difficult to prove unfair labor practices?
It depends. In the scenario with Starbucks where they fired a few people […]Starbucks has come out and said that they didn't follow establish rules and that was the reason for terminating them, not that they were involved in the union. […] If I have a workplace rule, that is fair, right? And not a backhanded attempt to discriminate against union members or potential union members, so I can enforce that rule. For example, let's say that the company has a rule that everybody has to be at their desk for 8:30 in the morning, and I have somebody who, unbeknownst to me, is at a union meeting and is late to work, I can discipline them because they're not following the rule. Now, in the implementation of that discipline, I can't just target the union members.
It seems like union laws and rules really are subject to interpretation.
The National Labor Relations Act gets interpreted differently very often, depending on whether there's a Republican president or a Democratic president in office. So, in the Obama administration, for example, there were several laws that protected people recording things in the workplace, that got backed off in the Trump administration, and you’re going to see more protections growing during the Biden presidency.
National Labor Relations Board General Counsel Jennifer Abruzzo recently suggested a return to the Joy Silk doctrine, which would ask employers to voluntarily recognize employee-formed unions without a formal election needed. How would this affect union relations?
For the union side, it's fantastic news, but for the employment side, it's horrific. Because what that doctrine basically says right now is, you get a notice from the union claiming that a majority of their people want a union, then you go to the NLRB, and there's this whole election process with a whole bunch of rules. During that time the employer can state their case for why a union is unnecessary.
But the Joy Silk rule basically blows that up and says that in a situation where a union comes to an employer, and says we have a majority vote, and the employer does not have a legitimate good faith doubt that that is the case, then they have to just accept that and go straight to bargaining. […] The way things are set up now, the union has to allow the employer the opportunity to approach the employees and say, ‘here are all the ways you have a voice here and here are all the ways that things are transparent.’
How do you prove it’s a majority without evidence?
That’s the purpose of an election. So then there's going to be a lot of litigation around what is legitimate good faith doubt.
How do you make the unionization process balanced so both sides feel heard?
Not in this political climate. […] Under the Obama administration, what they did was they kept the election process, but they shortened the timeframe and to me, that's the closest we have to fair, because it was the same process where both sides got to express how they feel but it was shorter. […] In the end, you want a fully informed decision.
What is union busting?
While there are types of union busting that are illegal, I would not call it union busting – I would call it union avoidance. […] Union avoidance is the process of educating people so they can make their own decisions. [...] retaliation is always illegal, but there are always two sides to the story.
So, what can a company legally do when faced with employees that want to unionize?
You have the right to your opinion, and you have the right to speak the truth. You can't lie, you can't defame people, you can't create things that aren’t true to try and bias people. But if you have a committee where you people get to speak on issues around the workplace, then you need to point that out to people, ‘we already do that.’ [...] You can require them to come to the meetings, you know, but you're still responsible for telling the truth, so you can’t use the meeting to say like, ‘all union members are thieves.’ You can say, ‘well, if we have a union here, you're going to have to pay dues.
If somebody doesn't vote or votes against unionizing, they and they're part of a unionized store, then what happens?
That's going to vary by state by state, okay. Some states it doesn't matter at all, some allow them to not be a part of [the union].
Does the law address power imbalance between employers and employees during a unionization process?
If they go up to somebody and say, if you've a vote for the union, you're going to lose your job, that won’t work [...] But the store still has a right to monitor performance, […] And in fact, a lot of collective bargaining agreements have what's called management rights clauses. Which say, ‘I get to do all these things without consulting with the union’ Those vary depending on the type of union, however.