Ross D. Franklin/AP Photo
Michelle Eisen, a barista at the Buffalo, N.Y., Elmwood Starbucks location, speaks with Starbucks employees in Mesa, Arizona about organizing their workplace, on Feb. 16, 2022.
Editor’s note: On February 22nd, Judge Goldsmith vacated his ruling, citing unspecified errors in it. It's not clear whether or when he'll reinstate his injunction.
Soliloquizing on whether to be or not to be, Hamlet muses about the desire to end “the law’s delay.” Such delays have more egregious and harmful effects on underlings, of course, than they do on crown princes, and in the United States over the past half-century, they’ve taken a particular toll on workers organizing to form a union.
Last Friday, a federal judge ruled that those workers have it hard enough without having to also wait for months or years to receive a bare modicum of justice. Judge Mark Goldsmith of the District Court of Eastern Michigan granted an injunction sought by National Labor Relations Board (NLRB) attorneys requiring Starbucks to reinstate an unlawfully fired worker, post and read the Court’s order, and importantly, immediately cease and desist from its unlawful activities nationwide. The injunction would remain in place while the judge hears the specific case involving the firing of a Starbucks union organizer.
This is, to my knowledge, the first cease-and-desist order that a federal court has issued in many decades to immediately block a corporation’s illegal campaign against its employees’ right to organize.
Under the terms of the National Labor Relations Act, an employer that discharges a worker who is attempting to organize their workplace is violating the Act. Historically, NLRB attorneys file a complaint against that employer before an NLRA-empowered administrative judge, who hears the case and issues a ruling. If the ruling upholds the NLRB’s complaint, it can compel the employer to rehire that worker, give them their back pay (minus anything they’ve earned elsewhere while fired), and post the NLRB’s order in the workplace. Before such an order takes effect, however, the employer can appeal to higher NLRB judges, and if need be to the federal courts.
At all points in this process, the employer is customarily able to drag out the case and its appeals, so that in most cases it takes months and often years before the company actually restores the job to the worker it illegally discharged. And this is what employers generally do, because firing pro-union activists has proven to be an extremely effective way of stopping organizing campaigns dead in their tracks. For those employers, having to provide some back pay as a penalty for their lawbreaking is trifling compared to the prospect of having to negotiate pay and benefits with their entire workforce.
Enter Jennifer Abruzzo, whom President Biden appointed as the NLRB’s general counsel. In memos to the roughly 500 NLRB attorneys whom she directs, Abruzzo has told them to enforce both the spirit and many long-forgotten letters of the Act. Workers, she’s written, need to be made whole financially when restored to their jobs, compensated not just in back pay but also for expenses that their work benefits would otherwise have covered. Unfair practices, she’s written, include the anti-union propaganda to which employers subject their workers in the “captive audience” meetings they compel their employees to attend.
Crucially, Abruzzo also took aim at the delays that employers are able to effect by drawing out cases before administrative judges and their higher-ups. The purpose of the NLRA is to facilitate workers’ right to organize, and the Act, she has reminded Board attorneys, contains Section 10(j), which enables workers to overcome the obstacles to organizing that such delays invariably impose. Under Section 10(j), the Board attorneys can go before a federal judge to request an injunction against employer lawbreaking when that lawbreaking is clear and when it causes significant harm to workers’ right to organize by effectively killing it through delays.
Starbucks has deployed all manner of anti-union tactics—many of them, as Judge Goldsmith noted, patently illegal—to thwart its employees.
Historically, Board attorneys have seldom sought 10(j) injunctions against illegal worker discharges, but Abruzzo’s directive has staunched that reticence. Promptly putting such fired workers back on the job can give workers a sense that the government and the law have their back as they exercise their right to unionize; doing it a year after their organizing efforts have fizzled clearly does not.
Judge Goldsmith’s decision wasn’t limited to the case of one worker in Michigan. The company, he wrote, is “enjoined and restrained from: (a) Discharging Starbucks employees at any of its stores in the United States (including territories) because they engage in union and protected concerted activities; and (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the NLRA at any Starbucks stores in the United States (including territories).”
In response to the ruling, Abruzzo wrote that it “confirms that Starbucks continues to violate the law in egregious ways, thus requiring a nationwide cease and desist order… We will continue to vigorously pursue swift and full remedies for workers whose rights are violated.”
Unless it’s quickly overturned by a higher court, Goldsmith’s ruling could restart organizing efforts at Starbucks that have waned a bit recently. To date, baristas at 280 of the roughly 9,000 outlets that Starbucks owns have voted to go union, but the number of shops seeking to unionize has declined over the past half-year, as the company, under the direction of returned CEO Howard Schultz, has deployed all manner of anti-union tactics—many of them, as Judge Goldsmith noted, patently illegal—to thwart its employees. As such, his injunction applies not just to illegal firings but to practices like captive audience meetings as well. The NLRB has argued that the Act also forbids Starbucks from withholding the company-wide raises it granted from workers at its unionized facilities. This has been probably the most effective tool the company has used to quell organizing.
Whether or not Goldsmith’s order covers that significant particular, Starbucks says it will likely appeal the order to a higher court. “We are seeking further legal review of the order—including a potential appeal,” Starbucks spokesperson Andrew Trull wrote in response to a Prospect query.
In the meantime, Sen. Bernie Sanders (I-VT) has requested Schultz’s presence at the Senate Health, Education, Labor and Pensions Committee on March 9. Schultz has thus far refused to testify; Sanders has stopped short of issuing a subpoena to compel his testimony, but in a statement he did say this: “If Mr. Schultz believes that a multi-billion dollar corporation like Starbucks can break federal labor law with impunity he is mistaken.”
What’s clear is that the Biden-infused NLRB agrees with Hamlet that the law’s delay is a problem, but one to be addressed by enforcing the law and axing the delay.
