J. Scott Applewhite/AP Photo
Advocates for a union for Starbucks employees watch as Starbucks founder Howard Schultz leaves the hearing room after testifying before the Senate Health, Education, Labor and Pensions Committee, March 29, 2023, on Capitol Hill.
Even a quick review of the huge number of complaints—93 of them—that the National Labor Relations Board has filed against Starbucks makes clear that the company has deployed numerous hard-hitting tactics, many of them illegal, to stifle its workers’ historic unionization drive. Those tactics include firing pro-union workers, closing unionized stores, punishing pro-union baristas by reducing their work hours, dragging out contract talks, and giving raises and improved benefits to Starbucks’s non-union employees while denying then to unionized workers.
In the words of Vermont Sen. Bernie Sanders, “Over the past 18 months, Starbucks has waged the most aggressive and illegal union busting campaign in the modern history of our country.”
Among Starbucks’s anti-union tactics, there is one that stands out above all the others at slowing and chilling the unionization campaign: awarding raises and benefits to its non-union baristas, but not to the baristas at its 300 unionized stores. A lawyer for the Starbucks workers union told me that the number of workers’ unionization “petitions fell off a cliff” after the company announced what the union’s attorneys call Starbucks’s “carrot-and-stick approach”: giving carrots to non-union workers to encourage them to oppose unionization, while giving the stick to baristas who have unionized. In a legal filing, the NLRB said that after then-CEO Howard Schultz announced this policy in May 2022, “the rate of new representation petitions being filed slowed dramatically,” plunging from 71 petitions in March 2022 to just eight petitions in August 2022. So far this year, Starbucks Workers United has filed an average of ten petitions a month, far fewer than a year ago.
The NLRB is pushing to have this carrot-and-stick tactic declared illegal, but as with many NLRB actions, this could take years to adjudicate. William B. Gould IV, chairman of the NLRB under President Clinton, voiced concern that if this tactic remains in place for several years, it could doom the unionization drive. “The biggest problem of all is if this policy stays frozen in place for two or three or four years, that’s the end, there’s no way this organizing drive will succeed,” Gould said. He said that by also dragging its feet in contract negotiations, Starbucks heightens baristas’ worries about delays in obtaining raises and benefits. (Starbucks asserts that it’s the union that is delaying negotiations.)
In recent days, workers at three Starbucks—in Buffalo, Rochester, and Manhattan—have filed decertification petitions, which, if successful, would make those workplaces non-union and thereby make the baristas eligible for the wage-and-benefit increases. Labor experts say Starbucks’s policy of awarding benefits to its non-union workers but not to its unionized workers has undoubtedly fueled these decertification efforts.
Jimmy Greene, who worked for five years as a Starbucks barista just outside Pittsburgh until he was fired after leading a union drive at his store, said, “I think this is an attempt to make workers think they don’t need a union and make the union stores feel punished and maybe they don’t want to be union anymore.”
“It’s important to emphasize that delay is not neutral. Delay favors the employer.”
“But I think this will backfire on Starbucks,” he added.
The NLRB’s general counsel, Jennifer Abruzzo, has filed two complaints against Starbucks asserting that its carrot-and-stick policy illegally discriminates against Starbucks workers who have unionized and illegally gives raises and benefits to non-union workers to pressure them to oppose unionization. The NLRB argues that the way Starbucks timed and communicated this policy was clearly designed to deter unionization.
Beginning last August, Starbucks rolled out a series of improvements for its non-union workers, but not its unionized workers: larger raises, improved training, a more relaxed dress code, faster sick leave accrual, a more generous employee savings program, and credit card tipping.
Benjamin Sachs, a labor law professor at Harvard, said this policy, by illegally seeking to pressure workers not to unionize, violates the National Labor Relations Act provision that prohibits employer actions that “interfere with, restrain, or coerce employees in the exercise of the rights” to unionize. “This offer of benefits to non-union workers,” Sachs said, “is a way of accentuating the message that unionization is not going to work and is actually potentially counterproductive.”
Starbucks maintains that this policy is fully legal. The company says it would be unlawful to give these raises and benefits to its unionized workers, asserting that to do so would unilaterally—and illegally—impose these things on its unionized workforce without having first negotiated them. A Starbucks spokesperson said, “Our implementation of changes and improvements to wages and benefits has stringently adhered to current federal labor law.”
To supersede Starbucks’s argument, the baristas’ union told the company that it would waive any requirement to negotiate these things, saying the raises and benefits should go to all workers, union and non-union.
Wilma Liebman, who headed the NLRB under President Obama, praised the labor board for filing complaints to overturn the carrot-and-stick policy. Like Gould, however, she nonetheless voiced fears that it could take years to resolve the issue: perhaps several to many months for an administrative law judge to rule on the NLRB’s complaint, and then if Starbucks loses, the company would probably appeal to the five-person labor board in Washington, where it could take two or more years for the board to issue a ruling. And if Starbucks lost there, it could appeal to a federal court of appeals, which could take another year or two.
“When I was at the board, we had some cases that were sitting there five or six years” Liebman said.
Sachs said that what’s happening on this issue underlines how broken the NLRB system is. “The problem is the process takes so damn long that it plays into the employer’s strategy, which is delay,” Sachs said. “It’s important to emphasize that delay is not neutral. Delay favors the employer.”
Gould said that considering the serious damage the carrot-and-stick policy has done to the unionization campaign, the NLRB should seize on the best tool it has to accelerate the process: “The only way to overcome delay,” he said, “is by pursuing a 10(j),” a process in which the NLRB goes to a federal district court to seek an injunction to immediately stop an illegal practice or win reinstatement of a fired worker while the case is being litigated before administrative law judges and the five-person board. “The 10(j) is the only game in town to overcome this antediluvian administrative structure that keeps things dragging on for three or four years,” Gould said. “Even if the employer loses the case three years from now, it will have won” because the union drive will likely have faltered by then.
Former NLRB chair Liebman agreed: “I don’t know why this hasn’t been included in a 10(j). It seems like it would have been an obvious thing to do. This is the type of tactic that is blatantly intended to discourage unionization efforts.”
Liebman said another possible strategy to help speed up handling of this issue would be for the NLRB’s general counsel to file a complaint that concerns just the carrot-and-stick policy to help prevent any delays or complications that can result from complaints involving numerous issues.
Responding to these recommendations that the NLRB should have sought a 10(j) injunction against Starbucks’s carrot-and-stick policy, Kayla Blado, the NLRB’s press secretary, noted that General Counsel Jennifer Abruzzo “has issued almost one hundred complaints and pursued Section 10(j) relief in numerous cases alleging hundreds of violations of labor law by Starbucks.” Blado said NLRB lawyers have vigorously argued that the Starbucks policy “is inherently destructive of workers’ rights, and a decision should issue soon.”
“General Counsel Abruzzo,” she added, “will continue to utilize all appropriate enforcement mechanisms authorized by the National Labor Relations Act to ensure that workers are meaningfully protected to exercise their labor rights, at Starbucks and any other employer covered by the Act.”
Union supporters often complain that under the National Labor Relations Act, the penalties that Starbucks and other employers might face for violating the law are minimal, whether they’re found guilty of illegally firing pro-union workers, bargaining in bad faith to drag out contract talks, or using a carrot-and-stick policy to discriminate against unionized workers.
“Ultimately we need a different system,” Sachs said. “One thing we need is meaningful remedies [that is, substantial punishments]. If we had meaningful remedies, then even if employers knew it might take a few years before they faced a penalty, they might think twice about violating the law in the first place.”
Labor leaders across the U.S. voice dismay that Congress has failed to enact the Protecting the Right to Organize Act, which would have amended the National Labor Relations Act to, for the first time, include significant fines for companies that violate the law when fighting against unionization.
Sachs voiced frustration about the difficulties and delays in stopping Starbucks’s carrot-and-stick policy. “The more this goes on,” he said, “the more it becomes clear that either we need a new law, or the Starbucks unionization campaign will need to turn to another form of power: either strike power or consumer boycott power.”
