Gene J. Puskar/AP Photo
Employers can stymie workers’ rights by refusing to negotiate with the union, or by just going through the motions.
The victory of the Buffalo Starbucks baristas last week in their vote to join a union offers concrete proof that workers can win, and that even a Fortune 500 corporation—one of the nation’s wealthiest—is not unbeatable. While there are still questions about what the union’s win means for the labor movement nationally, it’s clear that the campaign is already catalyzing worker organizing in other cities across the nation, from Boston to Arizona.
But even in Buffalo, the battle is far from over. Thursday’s union victory marked perhaps the end of the beginning. Serious challenges remain, including bargaining a first contract. Unfortunately, there are too many ways employers can try to destroy a union even after an election. We need better laws to stop these subtler forms of thwarting workers’ collective will. And until that happens, we need continued and focused public pressure on Starbucks to seriously negotiate with the people who make and pour the coffee.
What can employers do post-election? They’re permitted to mount certain challenges to the election itself, and some abuse this process. Worse still, some employers make brazenly illegal moves, like retaliatory closures of locations or firings of union activists.
Employers can also stymie workers’ rights by refusing to negotiate with the union, or by just going through the motions. The goal of unionizing is to improve working conditions, which happens by the union reaching a binding contract with the company covering wages, benefits, and other working conditions. And a contract at one Buffalo store could ultimately be far-reaching, potentially serving as a master contract replicated at other Starbucks locations.
More than half of all workers who vote for a union still don’t have a contract a year later; 37 percent of new private-sector unions don’t have a contract two years after an election.
Once a union has won an election, the company is required to bargain “in good faith.” But that requirement doesn’t have real teeth. If a company refuses to bargain, the National Labor Relations Board typically issues an order commanding the company to, well, bargain.
In fact, a company can give the appearance of good-faith bargaining while avoiding any real progress: giving the union skimpy, unserious counteroffers, or slow-walking the exchange of relevant documents—all without completely stonewalling. If, in the process, workers go on strike because they want better working conditions, federal law considers them “economic strikers” and allows the company to permanently replace them. (The cereal-maker Kellogg recently announced its intention to replace 1,400 strikers, a stance that President Biden condemned. Canadian law, by contrast, doesn’t allow this.) Strangely, there’s no mechanism for the NLRB or anyone to ensure that an actual union contract is ever reached.
Such foot-dragging moves enable some corporations to delay reaching the first union contract for years. More than half of all workers who vote for a union still don’t have a contract a year later; 37 percent of new private-sector unions don’t have a contract two years after an election. A 2021 analysis by Bloomberg Law found that the average time period for new union locals and employers to sign an initial agreement is 409 days.
Obviously, negotiating a contract doesn’t happen overnight. But stalling tactics and a lack of progress in bargaining can dissuade workers from unionizing, by conveying the sense that it’s futile even if you win the recognition election. Delay and surface bargaining can deflate the union’s momentum. And the law allows workers to petition to decertify the union one year after the union is certified. Employers can thereby delay real bargaining in the hope of making the union seem ineffectual, all the while drumming up anti-union sentiment and laying the groundwork for a rerun of their anti-union campaign.
The baristas at Starbucks could face this kind of campaign. The problems that unions encounter in this phase of their dealings with the employer—heel-dragging in negotiations and surface bargaining about window-dressing issues—are more nuanced and complex than those they battle pre-election. “Union-busting is disgusting” fits nicely on a union placard, but how would you succinctly sloganize the harm from disingenuous surface bargaining or slow-walking the sharing of key information? It’s a subtler, passive-aggressive version of union opposition, but it’s hard to explain to the public, and hard to address under current law.
A proposal in Congress, the Protecting the Right to Organize Act of 2021 (the PRO Act), would help with this situation: In addition to prohibiting permanent replacements for striking workers, the bill contains a procedure to ensure a first contract is reached relatively promptly, through referral of disputes to a three-person panel with power ultimately to impose contract terms.
But until the PRO Act passes, which currently seems unlikely given the Senate’s filibuster-driven requirement for 60 votes, public pressure is a critical tool to help persuade a company to engage in good-faith bargaining. Workers need the media to continue its focus on the Starbucks campaign, even though the drama of the election has passed. Elected leaders, members of the clergy, celebrities, and ordinary coffee consumers will need to communicate to Starbucks their strong support for the union, as well as the expectation that the company will respect the vote and end its anti-union campaign, in Buffalo and wherever baristas seek to organize. The public can urge Starbucks to negotiate immediately in good faith, and to make proposals that are substantive and responsive to workers’ concerns.
The Starbucks workers want their company to flourish. They just want a voice on the job, and better working conditions. Starbucks should sit down at the table, share a cup of joe, and quickly get to work on reaching a contract. And coffee drinkers everywhere should let Starbucks know that’s exactly what they expect.
