Karla Coté/Sipa USA via AP Images
Demonstrators gathered at the NASDAQ stock exchange in New York on February 15, 2022, to stand in solidarity with the “Memphis Seven,” Starbucks employees who were fired for union organizing in Memphis, Tennessee.
One reason why the share of American workers in unions has been declining for half a century or thereabouts is that when employers violate the law by firing pro-union employees to thwart unionization campaigns, the legal process that follows takes so long that by the time it’s settled, the unionization campaign is usually just a faint and distant memory. Customarily, what happens is that the workers or the union lodge a complaint with the National Labor Relations Board, hearings are held, rulings delivered, the employer appeals to a court, and the court delivers its own ruling. If found guilty, the employer is then ordered to rehire the worker (who in all likelihood may have found other employment), pay that worker their back pay minus any pay they’ve received in their new job, and post a notice somewhere in the workplace alerting passers-by to the outcome of the legal action.
In other words, (1) the penalty is completely negligible compared to what the employer would pay had the workforce voted in a union; and (2) the process takes so long that the remedy (if remedy it be) comes months or years after it could affect the unionization campaign.
As I’ve noted in my article in the current print issue of the Prospect, NLRB General Counsel Jennifer Abruzzo, understanding that this process has been effectively negating the National Labor Relations Act’s guarantee of workers’ right to form unions, has devised a remedy. In a memo, she’s instructed the roughly 500 attorneys who staff NLRB offices across the country to seek to get those illegally fired workers back on the job posthaste, while the organizing campaigns are still ongoing, by getting a federal court injunction ordering the miscreant employers to put those workers back on the job. Section 10 (j) of the NLRA empowers NLRA attorneys to get injunctions when violations of the law have immediate and serious consequences, but Abruzzo appears to be the first general counsel in at least half a century to use that section to keep employers from illegally thwarting organizing campaigns.
On Tuesday, the application for just such an injunction was filed in a federal court in Tennessee, seeking the restoration of the jobs of seven baristas who were fired from a Memphis Starbucks. To date, elections for unionization have taken place at 60 Starbucks, and workers voting to go union have won in 54 of them. Starbucks is responding with the standard playbook of tactics—many of them in clear violation of the NLRA—that American employers have felt free to invoke ever since the kind of rigorous defense of workers’ rights that the act’s authors intended began to fall through the cracks many decades ago. Better late than never, NLRB attorneys are now treating those violations seriously and urgently.
While anti-union forces complain that this kind of enforcement constitutes a pro-union bias, I think a fairer description is that Joe Biden’s NLRB is committed to law and order.
