This article appears in the February 2024 issue of The American Prospect magazine. Subscribe here.
Election day was jubilant at the REI retail store in the SoHo district of New York City in March 2022. Once the votes were counted, workers seeking to affiliate with the Retail, Wholesale and Department Store Union had shrugged off an aggressive union-busting campaign to earn a resounding 88-14 victory, forming the first union in REI’s history. The core group of organizers at the store, many of whom had been working on the drive for over two years, high-fived and hugged each other. Some threw union flyers in the air.
“Many of us live paycheck to paycheck because we’re working retail in New York City … and a union gives us a chance at a better future,” said Graham Gale, a bike and ski technician, who was one of the original union organizers and serves on the bargaining committee.
Everyone returned to their work stations in high spirits, expecting that the results promised better days to come.
But winning the election proved to be only the beginning of the road, not the end. REI workers stood at the foot of a Sisyphean hill for American labor unions: securing a first contract.
The REI Union went through the usual steps to initiate the bargaining process. They filed an official request to bargain, formed a bargaining committee, and began drafting proposals for what the first contract could look like. They got significant feedback from employees: The main demands were primarily for higher wages and more reliable scheduling hours.
According to union members, they sent their initial proposals to management and received no response for weeks on end. REI wouldn’t respond to emails at first. The company then created scheduling conflicts to complicate meeting dates, and stalled bargaining at the table by failing to provide counterproposals. Rinse and repeat.
“It’s like bargaining with a wall,” said Gale. “They made it clear from the start that their intention was to make this as hard as possible for us.”
Once the meetings finally started, another pattern emerged. Though REI’s legal representatives physically convened at the bargaining table, they often seemed more engaged in obstruction than productive discussion, workers claim. REI would put forward proposals and the lawyers would interrogate minor details, only to object to the entire proposal later on. On several occasions, they would retreat into caucus for up to six hours straight in the middle of the session, in what seemed like an attempt to run out the clock for bargaining that day.
Because of how little progress the two parties had made, workers decided to take action. In the fall of 2022, they held a walkout. It was effective enough to urge REI to enter a side letter agreement where the workers forfeited their right to collective action in exchange for a pledge by REI to better cooperate with the union in bargaining and provide pay raises to SoHo workers already provided to non-union shops, among other measures.
Graham Gale, a bike and ski technician at REI’s SoHo location, described contract negotiations as “like bargaining with a wall.”
Some improvements took place, but workers say that management once again withdrew back into unresponsiveness, meetings dwindled, and it became difficult to get just one session every six weeks. In the meantime, REI gave workers at all of its stores two hours’ paid time off to vote in the 2022 midterm elections, except for those at stores engaged in bargaining a first contract. It was a not-so-thinly veiled shot at the SoHo organizers.
Shortly before the side letter was set to expire in the spring of 2023, REI hired Morgan Lewis, the notorious anti-union law firm that Trader Joe’s retained for its protracted first-contract negotiations. The union would eventually decide not to renew the agreement.
This past fall, REI Union SoHo walked out again, highlighting how the side letter’s expiration rescinded the pay raises, which were given to workers at every other REI store. The union also filed 80 unfair labor practice charges against REI for failure to bargain and retaliation, which the National Labor Relations Board is currently evaluating.
REI has vowed to fight these charges. In a statement after the charges were submitted, spokesperson Natalie Stotts said, “REI disagrees with the union’s contentions … We are committed and engaged in good-faith bargaining with stores that have chosen union representation and will continue to participate fully in the negotiating process.”
It’s been nearly two years since the election and 18 months of bargaining, and the union still does not have its first contract. Union members say they have not even seen a full counterproposal from management.
THESE HURDLES TO A FIRST CONTRACT AT REI are becoming commonplace for unions across the country. The Starbucks union has gone two years without a contract at any of the more than 370 stores that have unionized. Amazon is approaching that milestone at its unionized Staten Island warehouse, and the same for union workers at Trader Joe’s. Those are just the highest-profile cases. There are hundreds of lesser-known examples of unions locked in what seems like a never-ending stalemate with employers, in a strange limbo between having an affiliated union and actually having the benefits and protections from it.
This phenomenon has intensified over the past decade. On average, it’s taking longer for new unions to get a contract than ever before. In a recent study that reviewed a sampling of 226 NLRB-certified union elections from 2018, the researchers found that nearly two-thirds didn’t have a contract within one year, and 43 percent were still working without a contract after two years.
Another study by Bloomberg Law showed that the timeline for first contracts has extended even compared to the 2010s. Of the 391 contracts surveyed, the average time from election to first contract jumped from under 400 days in 2011-2013 to over 500 days in 2020-2022.
The widespread obstacles to first contracts stand in the way of a resurgent labor movement, which is fueling a historic uptick in organizing across the U.S. since the pandemic. Union elections resulted in an over 70 percent win rate for most of 2022. What’s more, the NLRB under the Biden administration has delivered tailwinds to labor through a number of recent decisions that make it easier to hold union elections, such as when a majority of workers submit union affiliation cards.
But while more unions are forming, all of that momentum is at risk. Now that it’s harder for employers to block union elections outright, they are turning to a new playbook for union busting that highlights weaknesses in existing labor law.
“Lawyers and consultants who specialize in defeating unionization think of union organizing drives as a multistage war that employers can win essentially by attrition and delay,” said Catherine Fisk, a law professor specializing in labor rights at the University of California, Berkeley.
The blocking of union contracts highlights the imbalance between political rights and more limited economic rights under the American legal system. The ideals of liberal democracy in the political arena clash with a regime of authoritarian governance in the private sphere, where bosses can lord over workers like dictators.
In union election campaigns, these authoritarian tendencies include captive-audience meetings, which operate like compulsory versions of town halls used to dissuade worker organizing. These meetings can also extend to employers coercing employees to adopt their preferred political or religious agenda, and enlisting the workforce as foot soldiers for right-wing causes. Management tries to block elections with as much of an iron fist as any despot, and refuses to accept the legitimacy of election results when they lose.
As one union organizer for the Communications Workers of America, Christopher Thomas, described companies’ motivations to me: “It’s all about control.”
It’s rarely framed this way, but the most dangerous election deniers in our democracy are employers that can effectively undo union election wins by denying first contracts.
Courtesy REI Union
NELSON LICHTENSTEIN, A LABOR HISTORIAN at the University of California, Santa Barbara, explains that obstructing first-contract negotiations is not exactly new. From its inception, the Wagner Act had a blind spot about refusing to bargain, keeping its focus instead on securing union elections. Especially after World War II, companies exploited this loophole to get away with union busting, including delaying first contracts. What constrained their ability to do so had more to do with the overall makeup of the American economy in the middle of the 20th century, which carried far greater manufacturing density.
When auto plants unionized, for example, employers could realistically only hold out for so long before coming to the bargaining table. Their workforce tended to hold those jobs for most of their lives, strikes could inflict significant damage, and the losses of closing up shop were steep (though in some cases, factories did move to the South to resist unionization).
As U.S. firms outsourced manufacturing, a far higher percentage of the labor force now holds jobs in the retail and service sector. These worksites are far harder to organize in sustained union campaigns because there are much higher turnover rates. That’s also a challenge in keeping a union active once it’s formed. It’s also harder to exert pressure on employers through collective action, because the workforce is spread out across many stores—thousands in the case of Starbucks.
Workforce churn is an optimal arrangement for employers as an anti-union strategy to keep potential organizers in flux. Amazon even pays bonuses for workers to leave jobs after a short period. This would have seemed completely irrational to companies just a few decades ago. “Business schools like Harvard used to teach that you don’t want a lot of churn in the workplace, because it’s less productive. But now they encourage it,” Lichtenstein said.
This shift in the economy to service work is the structural factor driving widespread contract delays for new unions. Some employers bank on cycles of turnover to undo the union or at least weaken momentum, as long as they can delay contracts long enough.
After companies recognize a union, management often resorts to a twofold strategy of containment and psychological warfare. It starts with retaliation, either by firing organizers, denying benefits or wage increases to non-union shops, or in some cases closing down union stores entirely, as Starbucks was recently found guilty of doing in Ithaca, New York.
“Once you build containers around unions, then they flush out what’s inside the containers by trying to make it seem like getting a contract is pointless and will never happen,” said an organizer at Workers United, the Starbucks workers’ union, which is affiliated with the Service Employees International Union.
While employers are forced to come to the bargaining table, that doesn’t preclude them from treating the negotiations as little more than kabuki theater, never providing counterproposals or arriving at tentative agreements to any sections.
Inside the union stores, the constant delay is a tactic to demoralize the workforce until enough turnover dilutes union support. Unionized workers also do not pay dues until getting a first contract, so the union itself has to run on fumes during protracted negotiations. After ginning up enough frustration, management within a year of the election can even begin urging workers to file for decertification petitions as well, rinsing their hands of the disruptive union once and for all. Meanwhile, management hopes to simultaneously send a warning message to other shops that their efforts to assert their collective-bargaining rights will be futile.
LIKE AT MANY OTHER WORKPLACES, the union drive at REI sprouted during the pandemic. As working conditions deteriorated, with what employees described as inadequate health protections to keep the staff safe, the campaign coalesced in response to understaffing and wages that weren’t keeping up with the rising cost of living.
As workers saw it, these conditions flew in the face of REI’s self-image as a conscientious, progressive company that is attentive to the needs of its workers. The outdoor equipment and apparel retailer is unusual in that it’s run as a cooperative by a dedicated cohort of outdoor enthusiast members, who carry a certain amount of sway over company decisions, such as voting for a board of directors. REI invests nearly 70 percent of its profits in the “outdoor community” and is known for staking out activist stances on social issues, from environmental to racial justice. Company statements often boast that it “puts purpose ahead of profits.”
In practice, however, that slogan and the company’s professed liberal values rang hollow for the employees who actually operate the stores, especially during the union drive. In 2022, amid worker organizing, REI rolled out a new initiative called “The Way Forward” to win back disgruntled workers by “ensuring we’re creating a workplace where employees feel heard, feel supported and can thrive.” The company pledged to invest $50 million toward pay raises for hourly employees, and $92 million toward bonuses and employee retirement.
Once workers continued to unionize, however, the carrots from the Way Forward program turned into a stick. Those wage and benefit increases were cut from unionized stores like SoHo, according to union members and the unfair labor practice complaint. Today, eight REI stores are unionized; none have successfully negotiated a first contract.
The shift in the economy from manufacturing to service work is the structural factor driving contract delays for new unions, like at Amazon.
In a statement, REI spokesperson Natalie Stotts told the Prospect, “The collective bargaining process, especially when negotiating a first contract, can be lengthy and the timeline of our negotiations is not atypical. There have been many bargaining meetings over the past few months across our certified stores, and there are already dates scheduled into the future.”
The cooperative structure was also wielded against the union. As part of the member-run business model, workers at individual stores receive a certain amount of profit-sharing based on membership sales they bring in that year. It’s equivalent to a small though generous bonus.
The same year that the SoHo store unionized, management decided to restructure how the profit-sharing was allocated. As a result, the SoHo store was cut out entirely from the payment system, workers there claim.
The side letter agreement the union signed in the fall of 2022 temporarily extended the Way Forward wage increases, but once the agreement fell apart, union members say the benefits were slashed again.
Perhaps the most emblematic alleged retaliation came ahead of the 2022 midterms, when REI denied SoHo and other unionized employees two hours’ paid time off on Election Day to go to the polls as part of a democracy initiative. Respect for the democratic process at REI, as for many other liberal employers, did not apparently mean the same for collective-bargaining rights.
A SIMILAR CHALLENGE FACES THE NEWLY FORMED union at the National Audubon Society, a nonprofit conservancy network of state and national chapters dedicated to preserving bird wildlife. The bargaining unit at Audubon, known as the Bird Union, is currently locked in one of the most extensive contract delays, at 22 months, and says it has made little progress.
According to Bird Union organizers, high turnover at Audubon because of dissatisfaction with job quality was one of the main reasons why the union came together in the first place. Organizing ramped up during a particularly tumultuous period in the nonprofit’s history. After the killing of George Floyd, Audubon’s CEO at the time, David Yarnold, issued a searching statement supporting Black Lives Matter and promising to make Audubon into an anti-racist institution.
“Our nation is in turmoil because our governments, our institutions (including Audubon), and private individuals haven’t done nearly enough to act on that fundamental truth,” his letter read.
It was somewhat unexpected for Audubon to make such an unequivocal proclamation on divisive political issues. Audubon is mostly known for operating narrowly on conservation in a bipartisan fashion, though it regularly issues reports raising alarms about climate change and environmental causes, and attends international events such as the COP summits.
Yarnold’s letter sparked tensions at the board and led to a larger controversy regarding changing the namesake of the nonprofit, a famous conservationist named John James Audubon who owned slaves. Though the board voted not to change the name of the institution, the union goes by the Bird Union as a result. Yarnold eventually stepped down from his position under pressure.
Amid this internal battle, the union drive with the Communications Workers of America (CWA) gained traction and highlighted alleged mistreatment of workers, especially instances where workers of color had been demeaned by managers or cut off from promotions. Despite its political stance on racial justice, management’s newfound progressive bent did not extend to recognizing the union.
This pattern can be seen across many of the employers blocking union contracts, from Starbucks to Amazon and REI. “The underlying factor in much of this wave of contract delays is that liberal culture is sympathetic to certain inequities such as gender and racial discrimination, but anti-unionism much less so,” said Lichtenstein.
Audubon created a diversity, equity, and inclusion (DEI) program to try to smooth over worker dissatisfaction. The Bird Union does not oppose DEI initiatives. In fact, they’re trying to ratify them through collective bargaining. They did, however, see the timing of the program’s inception as a cynical ploy to try to placate members before the election.
Management pledged to put $25 million toward the DEI initiative, which raised questions for workers once bargaining started about why the organization refused to meet their demands for raises. “We always hear from management that they’re broke and don’t have money for us but somehow then you can just find $25 million in the couch cushions?” said Soncey Kondrotis, a bargaining committee member with the Bird Union and an operations manager at Audubon’s Rowe Sanctuary in Nebraska.
SETH WENIG/AP PHOTO
Management begrudgingly accepted the union, but union members say the organization then went to war against them, under the leadership of new CEO Elizabeth Gray.
“They don’t take unionization as a wake-up call to improve the job qualities, instead they take it personally, are resentful about it, and it’s all ego-driven,” said Christopher Thomas, a representative from CWA who has been assisting the Bird Union with negotiations.
Once Audubon came to the bargaining table, management acted like the change in leadership was enough to turn over a new leaf with its unionized employees. Workers wanted raises based on a salary floor, instead of entirely on merit performance, and better parental leave policy, among other demands.
Just getting management to the table was agonizingly slow. But once they started showing up, Bird Union members say that management would frequently not read proposals beforehand, dragging out the process while failing to provide counters. It took six months just to agree to the preamble language for the contract and around five months for them to respond to proposals on financials, wages, and benefits.
In several instances, workers on the bargaining committee say the lead representative from the law firm hired by Audubon has taken to berating and insulting workers in negotiations, calling them “stupid” and “ineffectual.”
Maxine Griffin Somerville, chief people and culture officer at the National Audubon Society, said in a statement to the Prospect, “The National Audubon Society is fully committed to continue bargaining in good faith. The process has taken time, which is expected for negotiating first contracts, but we have reached tentative agreements on a number of issues so far and will continue to work towards a signed contract.”
Amid negotiations, Audubon resorted to alleged retaliation against the Bird Union by giving raises and benefits to non-union workers but withholding them from the Bird Union shops, according to an unfair labor practice complaint. For example, despite rejecting the union’s proposal to improve paid parental leave by offering six weeks instead of two, management took the policy and gave it to all the non-union shops.
“They’re doing something as despicable as weaponizing parental leave against workers,” said Kondrotis.
Griffin Somerville said in response that “we have prioritized improving benefits and compensation. Over the past year, we implemented a package of salary increases and significantly improved benefits, including increased parental leave. We have offered the same benefits and compensation increases to the Union as a part of a full and complete contract.”
SO FAR, LABOR LAW HAS PROVEN ILL-EQUIPPED to counter this playbook, even though it explicitly flouts the National Labor Relations Act, which requires employers to bargain in good faith, at least in theory. The problem is that, as of now, there are limited mechanisms available for the NLRB to actually enforce the law.
For example, the NLRB can’t yet impose financial penalties for employers found guilty of bad-faith bargaining. For employers, that makes delay a seemingly better gamble than the risk of a union winning a contract and emboldening further labor activity at other stores.
However, the same employers are also making unilateral changes to worsen conditions. At Audubon, for example, the company made a few changes to the health care plan last summer, and didn’t inform the union about them until a week before the open enrollment period ended in the fall, union members claim. Management gave the union no opportunity to negotiate about those new policies.
Meanwhile, in a perverse twist of logic, Audubon and REI claim that they can’t extend wage increases and other benefits to union stores because of existing labor law, according to employees. The companies cite the “status quo period” amid ongoing bargaining, where management typically can’t make “unilateral changes” to contracts. Critics charge that the companies are using the National Labor Relations Act to justify a retaliation strategy.
Both the Bird Union and REI Union have filed unfair labor practice (ULP) charges based on the withholding of benefits, imposition of worsened policies like the Audubon health care plan, as well as refusal to bargain. The NLRB’s Manhattan office’s initial review of the Audubon ULP last October was that the complaint had merit; the NLRB has not yet taken action on the REI case.
Griffin Somerville, of the Audubon Society, stressed that “the National Labor Relations Board has not conducted a hearing nor made a decision on the unfair labor practice charges.”
Even when the NLRB takes up ULP charges, management will drag out the cases in courts through appeals. If the case goes all the way to the Supreme Court, they can be assured they’ll find sympathetic ears from the majority conservative justices, who’ve consistently ruled in favor of business groups over unions for the past 20 years.
The inability to enforce laws against a refusal to bargain poses a threat to the democratic rights citizens have in the workplace to engage in collective action.
“[Employers] right now are challenging the very legitimacy of the NLRB by saying we don’t care what your rulings are because we don’t believe we should be unionized, so we’re just going to ignore the law,” said Kate Bronfenbrenner, the director of labor education research and a senior lecturer at Cornell University’s School of Industrial and Labor Relations.
Starbucks was a pioneer of many of the new strategies to block contract negotiations, including withholding new benefits to unionized workers.
In a few cases, it seems to be paying off. According to the Workers United organizer, of the 371 Starbucks stores that have unionized over the past two years, 14 of them have filed decertification petitions, though the NLRB is throwing them out because of a prior ULP being heard against Starbucks for failure to bargain. At a number of stores, most of the original staff have left and the union is inactive. According to leaked memos, at a handful of stores decertification flyers have been distributed by the Koch network–funded National Right to Work Foundation, whose lawyers are represented on each petition.
Starbucks, of course, wrote the book on many of these new strategies to block contract negotiations, including withholding benefits under supposed status quo bargaining.
The company has been accused of refusing to let union stores get access to new digital payment screens that provided tip functions, which the union estimates took away roughly one or two dollars an hour from those workers’ salaries. It also means it’s harder for unionized stores to get outside workers to fill shifts when they’re short-staffed, since workers know they can’t make as much money at that store.
Many employers have also modeled their bargaining strategy after Starbucks’s efforts, which workers describe as psychological warfare. It’s no surprise that there’s overlap, since many of these employers also share the same law firms to handle negotiations. Firms like Littler Mendelson and Morgan Lewis have devised aggressively anti-union playbooks to deal with first-contract negotiations.
Starbucks’s refusal to bargain went even deeper than just procedural delays at each store. After a series of victories in Buffalo, New York, Starbucks union drives took off like wildfire across the country. To streamline the process, the unions formed a national bargaining committee to draft contract proposals. It made sense since the chain stores are run in a uniform manner, so naturally problems like staffing levels and unreliable scheduling are mostly the same across stores.
For this reason, the union suggested first negotiating a national framework agreement that would apply to each individual store, which could then separately bargain over the other issues unique to their stores. Management refused to accept that, union members say. Instead, they wanted to send their army of well-paid lawyers to each of the nearly 400 stores to go through the same exact bargaining process over and over. That earns a fortune for the law firm but wastes a lot of time negotiating over identical issues.
What’s more, workers claim, management wouldn’t let any of the national bargaining committee members attend the sessions, because they insisted on in-person negotiations only. When the union would have a Zoom screen open in early bargaining sessions, the lawyers would either walk out or start shouting down union members when they started speaking. Denying members of the bargaining unit access to sessions via remote teleconference is becoming a common tactic; Trader Joe’s shut down negotiations for six months over this issue, according to Steven Greenhouse, writing in The New Republic.
The union filed ULPs based on the refusal to bargain, which is the main contention in the ongoing NLRB case against Starbucks. In the meantime, the union accepted management’s request to not have national bargaining members on Zoom, so they could at least for the time being continue bargaining.
“It makes this process mind-numbingly slow,” said Michelle Hejduk, a barista in Mesa, Arizona, who also sits on the bargaining committee.
The complaints have been compiled into a massive case against Starbucks currently under way in Seattle, a major test of whether labor law is up to the task of this new landscape for union busting. Starbucks did not respond to multiple requests for comment.
TOBY SCOTT/SIPA USA VIA AP
CONSTRAINTS ON THE ENFORCEMENT of the National Labor Relations Act have hobbled the NLRB’s ability to crack down on employers denying first contracts. Another impediment is the packing of courts with judges favorable to business interests.
In cases involving retaliation by management, the board is able to reinstate a worker fired by an employer for union organizing, along with awarding back pay. The same is true when an employer closes down a store explicitly because the workers there unionized, as Starbucks did in Ithaca. There have been dozens of separate decisions against Starbucks for these types of activities.
But for charges about refusal to bargain, it’s far more difficult, since the board cannot impose financial penalties to dissuade illegal behavior. Companies and their anti-union law firms are well aware of this limitation and are wielding it to their advantage.
Federal labor law, for much of the private sector, does not set any time period after which the two parties that can’t reach an agreement either enter arbitration or come before a federal mediator. In most provinces in Canada, that’s how the process is resolved after 90 days of unsuccessful bargaining, so that negotiations can’t just get blocked indefinitely.
In other words, the federal government in the U.S. cannot step in to impose a contract on an employer as a remedy when it refuses to bargain. At least, that’s the interpretation of the NLRA that the board has historically taken, though some legal scholars dispute it. Catherine Fisk at UC Berkeley points out that it’s not explicitly written into the statute of the NLRA and the board could try to use the law more creatively.
“With how dire the situation is for first contracts and how flagrantly employers are breaking the law, it might be time to push beyond the traditional bounds,” Fisk said.
As Fisk explains, though, the shortcoming of this approach is that despite the legal merits, any ruling on first contracts could get knocked down in the courts and create a bad precedent.
Many labor leaders believe that the NLRB needs new tools added to its arsenal, in the form of the Protecting the Right to Organize Act. The PRO Act would impose heavy penalties for a range of union-busting practices, as well as refusal to bargain, and would also set a deadline for negotiations after which a mediator would intervene.
But that legislative solution would actually require Congress to act, which it has proven increasingly unfit to do, especially when it comes to opposing business groups that have gone to the mat lobbying against the PRO Act.
However, the NLRB’s general counsel, Jennifer Abruzzo, is pushing for another potential fix that would unshackle the board from self-imposed legal obstacles to address first-contract delays. In a number of briefs filed to the board, Abruzzo is actively pushing for the overturning of a board decision from the 1970s known as Ex-Cell-O.
Overturning Ex-Cell-O would free up the board to pursue more robust remedies when an employer is found guilty of refusing to bargain. The board would be able to force employers to “make their employees whole again” by paying employees wages proportionate to what they would have received through collective bargaining. That would be calculated by looking at how much unionized workers make in the same sector.
“If refusal to bargain happens in an industry that has established unions like in hotels, you can pretty easily estimate what workers should be compensated but for their employer’s refusal to bargain,” Fisk explained.
The board has not yet ruled on one of the cases where Abruzzo is recommending overturning Ex-Cell-O, but that could be decided later this year.
In the meantime, unions are focused on trying to keep their workers engaged, despite the frustration about the delays. Many unions such as Starbucks, REI, and the Bird Union have tried to counteract burnout by devoting additional meetings to keeping workers in the loop about contract updates.
“There’s no question keeping enthusiasm going is one of our biggest challenges at the moment,” said Thomas from CWA.
Gale at REI, however, says they see resilience among workers. They aren’t sure that the employer’s tactics have had the intended effect of beating down employees. It could have the opposite impact.
“I see what the company is doing and I know they think it will be effective,” they said, “but they’re underestimating that we have no other choice.”
