The National Labor Relations Board’s Buffalo Regional Office issued a complaint against Starbucks on Friday, alleging the coffee giant violated workers’ rights hundreds of times in western New York. The regional office found merit in many of the union’s claims about union busting, alleging at least six workers were fired for organizing in upstate New York.
The complaint also alleges Starbucks surveilled and punished workers for organizing by selectively enforcing sections of its employee handbook, according to a copy of the complaint sent to Restaurant Dive. In one instance included in the complaint, Brian Murray, a worker and union supporter in Buffalo, pictured above, received a written warning for wearing a union shirt to work, though Murray said the company did not previously enforce a prohibition against T-shirts with large logos. The union drive has reached more than 250 stores.
Starbucks representative Reggie Borges said in an email to Restaurant Dive that the union’s charges and the NLRB’s complaint have no merit. Starbucks maintains that union supporters who faced disciplinary action did so because they knowingly violated the company’s code of conduct. The company will not settle with the union before trial.
Starbucks has attempted to dissuade employees across the country from voting yes in union elections. But the company has also promised to bargain in good faith, as required by law, with unionized cafes. The NLRB regional office, however, claims Starbucks neglected to bargain over changes to working conditions at unionized stores. For example, the complaint alleges Starbucks changed the minimum number of hours workers at the Elmwood Avenue location in Buffalo were required to be available for work on a weekly basis.
In April, Starbucks also announced new employee benefits will not extend to workers at unionized stores, or stores that have filed for elections. Though Starbucks maintains these perks are unrelated to the union drive, Starbucks Workers United filed charges against the company over the benefits rollout. But these charges came too late to be part of the NLRB’s consolidated complaint. If those benefits changes were in fact intended to dissuade employees from organizing, it would be illegal, retired union-side labor lawyer Gay Semel, who worked as a field attorney for the NLRB for two years, said.
The question now is how this NLRB complaint, and others like it, could impact Starbucks’ anti-union strategy going forward. According to labor experts, the complaint’s teeth may be undermined by the NLRB’s lengthy Process for Unfair Labor Practices.
Friday’s complaint will pass next to an administrative law judge, and Starbucks and the union will have time to file briefs in response. From there, the judge will try the case, but it could be years before consequences are handed down if the chain is found to have committed union busting.
That process, including objections, can generate hundreds of pages of briefs and last for years without a settlement or a conclusion, Semel said.
“It is the beginning of a litigation process that permits both sides to be heard and to present evidence. We believe the allegations contained in the complaint are false, and we look forward to presenting our evidence when the allegations are adjudicated,” Borges wrote.
A possible consequence outlined in the NLRB’s complaint is that Starbucks should produce a video statement on workers’ rights, explained by interim CEO Howard Schultz or President of Starbucks North America Rossann Williams, that could be shown to all stores.
John Logan, professor and director of labor and employment studies at San Francisco State University, wrote in an email to Restaurant Dive that such a video recording was a more effective remedy for unfair labor practices than posting notices, as such notices often go unread. The complaint also calls for increased training for Starbucks managers on workers’ rights and the right to equal time and ability to respond during compulsory anti-union meetings.
The NLRB cannot impose remedial action unless an administrative law judge finds the company violated labor law, Sid Lewis, an employment-side labor lawyer with Jones Walker, wrote in an email to Restaurant Dive. Even if the company is found to have broken the law, Starbucks would have room to maneuver by appealing to federal court. The board’s ability to impose penalties is also restricted by law, NLRB Press Secretary Kayla Blado said.
“The NLRB is prohibited from assessing monetary penalties,” Blado said. “The agency may seek make-whole remedies, such as reinstatement and backpay for discharged workers, and informational remedies, such as notice posting, notice reading and electronic distribution of a notice.”
The complaint’s request for video explainers on workers’ rights, for example, could take years to enforce — too late to have an impact on the dozens of elections the NLRB has scheduled at Starbucks stores over the next few months.
It’s common, according to Semel, for companies with limited resources to settle before such a trial. But a company the size of Starbucks could absorb the cost of an administrative law case, and appeal to an appeals court if dissatisfied with the initial trial’s outcome.
“This is the great weakness of labor law,” Semel said. “If you have an employer with deep pockets, they can just keep doing this for a really long time.”
In extreme cases where large numbers of serious labor law violations are alleged, Semel noted, the NLRB can seek an injunction against company actions in federal court. The NLRB’s New Orleans region has already sought an injunction against the firing of seven Starbucks union supporters in Memphis, Tennessee.
“This is the great weakness of labor law. If you have an employer with deep pockets, they can just keep doing this for a really long time.”
Retired union-side labor lawyer
But Semel said such injunctions are rare, and the process by which the board decides to seek one is also lengthy.
“Of course, employers can appeal any adverse decision through the federal court system,” Lewis said.
Extended litigation over labor law gives an edge to employers in high-turnover industries, Nelson Lichtenstein, a professor specializing in labor history at University of California Santa Barbara, told Restaurant Dive in a past interview.
“From the point of view of employers, delay is absolutely vital, and a winning strategy,” Lichtenstein said. “Just delay, delay, whatever you're doing, whether it's the vote or the union contract or anything, just delay it, and in a year, half a year, half the workforce will be gone.”
NLRB complaints rarely have an impact on new organizing drives, Lewis said, especially in shops where the union already lacks support. But Murray said he felt vindicated by the NLRB’s complaint — arguing it’s a symbolic win for the union.
“I think it'll have an impact on morale and probably reverse the cooling effects of Starbucks’ retaliation against workers seeking to organize,” Murray said.