Ever since a group of Starbucks workers in western New York moved to unionize last year, the world’s largest coffee chain has been locked in a fierce legal battle with the upstart union, Starbucks Workers United. But as more baristas across the country unite, a clear winner has already emerged in this potentially historic labor struggle.
That would be Littler Mendelson, the law firm handling Starbucks’ litigation at the National Labor Relations Board, the federal agency that referees private-sector union elections.
The company’s lawyers have been busy trying to slow the fast-spreading union campaign that’s stunned the labor world. In a matter of months, Starbucks workers have filed petitions for union elections at more than 50 stores in at least 19 states. Starbucks has been using the same legal argument to stop these elections from moving forward at the NLRB, even though the board rejected it the first time Starbucks tried it.
A review of NLRB filings shows at least 30 Littler lawyers have worked on these Starbucks cases so far, suggesting the coffee chain is running up a big tab on its as-yet unsuccessful effort to halt elections. That number may have grown during the writing of this article, since Starbucks Workers United just filed new petitions this week that haven’t had NLRB hearings yet.
It’s standard practice for an employer facing a union campaign to retain a firm specializing in “union avoidance.” Many companies will dig as deep in their pockets as necessary if it means staying union-free. What’s unique about the Starbucks situation is that the company is scrambling to stamp out organizing fires coast to coast all at once.
To outsiders, the legal strategy seems designed to buy whatever time the company can get, regardless of whether the arguments might succeed.
“To them, it’s not going to matter how many rulings they lose on exactly the same question. They will do it every time,” said Jennifer Sherer, who works on collective bargaining issues at the Economic Policy Institute, a think tank. “To many of us it looks pointless … but it is fully legal. For any employer with the kind of resources that Starbucks has available, time is their favorite weapon.”
The Starbucks union, which is an affiliate of Workers United, has already won two of the three elections held in the Buffalo, New York, area.
Starbucks argued that those elections should have been grouped into a much larger one encompassing all the Starbucks stores in the area, and has continued to make the same case in other regions as more workers have tried to unionize. Enlarging the potential bargaining unit could dilute each union’s support and force it to do more organizing at other shops, to Starbucks’ benefit.
But NLRB officials have been greenlighting individual store elections because of longstanding rules that presume single-site unions are appropriate.
“The company’s lawyers are just going to continue to raise the same dead legal issue until somebody puts a stop to it.”
– Ian Hayes, lawyer for Starbucks Workers United
Starbucks challenged a regional NLRB official in New York’s decision to allow the Buffalo stores to vote in individual elections last year. But the NLRB’s board in Washington, D.C., shot down that effort in December. The company has pursued the same argument to stop other union elections elsewhere, even though it’s highly unlikely the board will act any differently.
Ian Hayes, a Buffalo-based labor attorney who’s been coordinating Starbucks Worker United’s legal work, described the company’s mounting challenges as something close to carbon copies: “The same facts with different proper nouns.”
“The company is making identical arguments, and the union is forced to do the same in response,” he said. “The company’s lawyers are just going to continue to raise the same dead legal issue until somebody puts a stop to it. They are not going to stop doing that out of a sense of shame, or out of the knowledge that they’re going to lose and they’re wasting everyone’s time and money.”
Starbucks CEO Kevin Johnson said in a letter to employees in December that it was fighting single-store elections because “we feel strongly that all partners in Buffalo should have a voice.”
A Starbucks spokesperson told HuffPost this week that the company was continuing to make the same argument elsewhere in the country not as a stall tactic but as a matter of consistency and principle.
The Benefits of Stalling
Slowing down a union campaign through NLRB proceedings gives an employer more time to ramp up their anti-union campaign on the ground. When workers in Buffalo began organizing last year, Starbucks flooded the area with outside managers and executives who met with workers to discourage unionization. Delaying a vote, by weeks or even days, would allow a company to hold more captive-audience meetings and send more text messages to workers.
Stalling can also change the composition of the voter pool over time, especially in a high-turnover industry like food service. Unions typically file for elections after they’ve determined they have a strong majority of support among current workers. Employers can increase their chances of defeating the effort by watering down the pro-union contingent.
Larry Cohen, former president of the Communications Workers of America, said companies will try to bog a campaign down in legal proceedings while hiring more employees likely to vote against the union.
Even in cases where a union wins an election, employers can use turnover to galvanize a decertification campaign, where workers eventually vote to purge the union from the workplace. (In a memoir, Starbucks co-founder Howard Schultz reveled in the decertification of an early union at Starbucks worksites in Seattle in the late 1980s.)
“They will use their control of the hiring process to try to change the outcome,” said Cohen, who is now the board chair of Our Revolution, the progressive group aligned with Sen. Bernie Sanders (I-Vt.). “You get a bunch of people in a store that were hired basically to be pro-management, if not explicitly anti-union.”
The very prospect of delay can shape crucial decisions in a campaign.
When Amazon was facing a union drive at an Alabama warehouse beginning in late 2020, the retail giant sought to dramatically increase the size of the bargaining unit through the NLRB. The union acquiesced rather than fight the company, knowing the legal proceedings could slow down the campaign for months. (Workers voted against unionizing by a large margin, though Amazon was ultimately found to have broken the law. A re-run election starts this month.)
“For any employer with the kind of resources that Starbucks has available, time is their favorite weapon.”
– Jennifer Sherer, Economic Policy Institute
Hayes and his team are trying to keep the cases moving. This week he filed a motion asking an NLRB official to prevent Starbucks from introducing evidence to rehash the single-store election issue. “While the Company and the Union have litigated the appropriate unit issue over the past several months, Starbucks has had the opportunity to wreak havoc in its petitioning stores,” he wrote.
Wilma Liebman, a former chair of the NLRB’s board, said she couldn’t recall a perfectly analogous situation to what’s going on with Starbucks. She said if Starbucks continues to challenge the elections, the agency’s regional directors could demand to know what differentiates each case from the last one. If Starbucks can’t convincingly say, the director could declin to hold a hearing. And if Starbucks appeals that decision to the board, the board could quickly deny review.
“It would seem to be a waste of resources for the board to keep holding hearings, if the same thing is going to be litigated time after time,” Liebman said.
The rapid pace of organizing has required the union to retain more outside attorneys to handle the growing number of union petitions at the board, especially with Starbucks determined to fight them. Workers United, which is part of the Service Employees International Union, has used a smaller stable of lawyers than Starbucks so far, with 16 different attorneys listed on the cases. Most of them come from union-side law firms based in the areas where workers have petitioned for elections.
Hayes said the legal response from Starbucks has been “more extreme” than he anticipated.
“In that way it’s kind of a manifestation of class warfare,” he said. “Of course the company can outspend the union in legal fees, even if they know the lawyers are basically wasting their time. Wasting time is the exact purpose.”