Is Starbucks in the Espress(o) Lane to Violating Labor Laws?
July 2022 | Annie Vong, Staff Writer/Editor
Across the United States, the influence of unions and labor movements has been spreading. Unions are organizations of employees separate from their corporations that aim to balance the power between employees and employers through negotiations on wages, schedules, working conditions, and contracts. Unions started forming in the mid-1800s as a response to the Industrial Revolution and fought for safe working conditions, overtime pay, a ban on child labor, and a reduction in work hours from 100 hours per week to 40 hours per week.[1] They were widespread across America, as the union membership rate peaked in 1954 with 35% of all employees belonging to a union.[2] However, union membership has dropped sharply since, with the rate in America in 2020 at 10.8%.[3] As workers return to the workplace, though, the rise of unions and workers campaigning for rights have been swarming headlines. So, why is there such a boom in the demand for unions in America now? The pandemic. For many employees, lockdown served as relief from the continuous monotonous shuffle of work, and employees are eager to bring some of that peace into their workplace. Going into lockdown has allowed employees to reevaluate their working environment, including America’s beloved Starbucks baristas.
Background
The first Starbucks store to unionize in a post-lockdown wave was in Buffalo, New York in December 2021.[4] Now, there are over 100 stores awaiting union votes.[5] According to Noam Schieber, a reporter for The New York Times that covers workers and workplaces, “roughly 65 percent of employees eligible to vote in a union election had not taken part.”[6] There are many more stores that have not had a chance at unionizing yet, and the way that Starbucks manages unionized stores will determine the potential of unions forming at other stores. The Buffalo store unionized under Workers United and wanted to address under-staffing and under-training, which worsened during the pandemic. At that store, workers claimed that Starbucks was hiring excessive staff in order to dilute the number of people that would vote for a union. Additionally, Starbucks included employees from other stores that filled staff shortages into the union vote as well, despite those employees only having worked there temporarily.[7]
In a Starbucks store in Memphis, Tennessee, seven Starbucks workers who were involved in forming a union were fired. Those employees allowed members of the press to visit the store and speak with them about their unionization efforts. However, Starbucks claimed that the press was not allowed to visit the store after the close of business, and the reason offered for the firing of those seven employees was “safety and security violations” of store policy.[8] In May 2022, Starbucks raised the wages of every Starbucks store except for the unionized stores sparking speculation that Starbucks was discriminating against its union employees.[9]
With all these actions, has Starbucks violated labor laws?
The National Labor Relations Act (NLRA) was passed in 1935, which makes spying, harassing, firing, or retaliating against union employees and refusing to engage in collective bargaining illegal.[10] Collective bargaining is when union employees, union representatives, and employers negotiate the terms and conditions of employment. The Senate has the power to create this law via the Commerce Clause, which states that Congress “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”[11] The ability of employees to organize and collectively bargain improves the flow of commerce, giving Congress the authority to protect organizing and bargaining with legislation.
But how is this legislation—which protects workers’ rights—enforced?
The National Labor Relations Act also created The National Labor Relations Board (NLRB), an independent federal agency that focuses on protecting employees’ rights by investigating complaints of unfair labor practices.[12] The NLRB has investigated high-profile labor issues in Tesla, Walmart, McDonald’s, and Google.[13] This board has authority over private companies and corporations because of its statutory jurisdiction over private employers that have interstate commerce above a minimum level.[14] Statutory jurisdiction is when an agency has authority conferred to them by a statutory law—in this case, the NLRA—passed by a legislature. Starbucks would fall under that jurisdiction because they are a private employer that has activity in interstate commerce above that minimum level.
Is it legal to add workers who have worked at the Buffalo store temporarily to dilute the union vote?
The Buffalo store has filed several complaints to the NLRB, and the NLRB may find that the addition of temporary employees in the union vote undermined laboratory conditions prior to the union vote. Union elections must be held in laboratory conditions, which means that conditions must be as ideal as possible and there must be no coercion of employees’ votes. If the NLRB finds that Starbucks violated laboratory conditions, then Starbucks could be forced to put up a notice that they violated the law.
Is it legal to fire the seven employees from the Memphis store?
It could be seen as retaliation for forming a union, as the NLRA prohibits “discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”[15] Could the NLRB find that the seven Starbucks employees were discriminated against in their hastened tenure of employment? Perhaps not; union membership was not explicitly listed as the reason for their termination, so Starbucks can argue that they did not fire them as retaliation for forming a union.
Is it legal to raise wages for every store except for the unionized ones?
Starbucks may be trying to signal to its non-unionized workers that benefits are better without unionization. However, if unions are still engaged in collective bargaining for higher wages, then Starbucks is not violating the NLRA by raising the wages for non-union stores. A leaked memo from Starbucks executives revealed that collective bargaining may take up to a year, and wages may be frozen in the meantime.[16] Although refusing to engage in collective bargaining is illegal, the NLRA does not explicitly state that drawing out collective bargaining negotiations is illegal.
Conclusion
Ultimately, the decisions the NLRB makes in these complaints against Starbucks determine not only the future of Starbucks unions, but unions forming at Amazon, Trader Joes, Walmart, and other large employers. If Starbucks is found by the NLRB to have engaged in union busting, then the punishment for unfair labor practices is a slap on the wrist that tilts the balance in favor of large corporations. With consequences as weak as putting up a notice that they violated the law, Starbucks is incentivized to continue its behavior because the costs of letting a union form outweigh the consequences of union busting. If these loopholes in labor law continue to be exploited by large corporations like Starbucks, it puts workers’ rights and the legitimacy of unions in a lat-te trouble.
Sources
Ward, Marguerite. “A Brief History of the 8-Hour Workday, Which Changed How Americans Work.” CNBC. CNBC, May 5, 2017.
Mayer, Brian. “Cross-Movement Coalition Formation: Bridging the Labor-Environment Divide*.” Sociological Inquiry 79, no. 2 (2009): 219–39.
“Union Members Summary - 2021 A01 Results.” U.S. Bureau of Labor Statistics. U.S. Bureau of Labor Statistics, January 20, 2022.
Scheiber, Noam. “Starbucks Workers at a Buffalo Store Unionize in a Big Symbolic Win for Labor.” The New York Times. The New York Times, December 9, 2021.
Amelia Lucas, Kate Rogers. “Starbucks Will Have at Least One Unionized Cafe in Buffalo, New York - A U.S. First for the Chain.” CNBC. CNBC, December 9, 2021.
Scheiber, Noam. “Starbucks Chief Talks of Possible Benefits for Nonunionized Employees.” The New York Times. The New York Times, April 13, 2022.
Scheiber, Noam. “Starbucks Seeks to Delay Union Election as Vote Nears.” The New York Times. The New York Times, November 9, 2021.
Morrow, Allison. “Starbucks Fires 7 Employees Involved in Memphis Union Effort | CNN Business.” CNN. Cable News Network, February 8, 2022.
Scheiber, Noam. “Starbucks Plans Wage Increases That Won't Apply to Unionized Workers.” The New York Times. The New York Times, May 4, 2022.
National Labor Relations Act: 29 U.S.C. §§ 151-169
U.S. Const. art. 1. sec. 8. cl. 1.
“What We Do.” What We Do | National Labor Relations Board. Accessed July 16, 2022.
“Cases and Organizations of Interest.” Cases and Organizations of Interest | National Labor Relations Board. Accessed July 16, 2022.
“The Law.” The Law | National Labor Relations Board. Accessed July 16, 2022.
Ibid, 3.
“Leaked Memo: Starbucks Threatens Pay Freeze on Workers If They Unionize.” VICE, April 15, 2022.