High-profile union campaigns offer a learning opportunity for HR

The Starbucks union movement is hotter than a Venti cup of Pike Place splashing across a freshly pressed gingham oxford shirt. Since last December, workers at 126 stores across 28 states have filed petitions with the National Labor Relations Board to join Workers United, an affiliate of the Service Employees International Union (SEIU), spokesperson Dawn Ang told HR Brew. There are around 9,000 corporate-owned Starbucks in the US.

Presently, workers at six Starbucks stores—five in western New York and one in Mesa, Arizona—have successfully voted to unionize. The nascent organizing process—which began last summer in the Buffalo area—has been tense, with the company launching a website that says things like “We do not believe unions are necessary at Starbucks” and allegedly staging “captive audience meetings” with workers at stores that are organizing. Several terminations have occurred at stores throughout the country that Workers United alleges were retaliation for union activity.

Starbucks said the firing of seven employees who had been “involved in union effort” in Memphis last month was not in response to union activity, but rather due to “significant” violations of workplace safety rules.

Private-sector union membership remains low, with only 6.1% of workers belonging to unions, according to the Bureau of Labor Statistics. But as the Starbucks union drive demonstrates, organizing momentum can shift quickly, especially when high-profile union drives make national headlines. To help HR professionals understand some compliance issues that can arise from unionization in the workplace, we spoke with labor and employment lawyer Keith Brodie, who shared his thoughts on the legal landscape.

Know what, uh, not to do...When employees are engaged in a union campaign, employers may not interfere with the process and are legally bound by rules established in the National Labor Relations Act. Signed into law by President Franklin D. Roosevelt in 1935, the NLRA ensures the right of most private-sector workers to organize, take collective action, and collectively bargain. “Employers aren’t able to engage in activities or practices that would in any way inhibit the employee from exercising their free choice to either join a union or not join a union,” Brodie explained.

There are numerous ways an employer can violate the NLRA during the organizing process. The NLRA also restricts unions from certain conduct, like charging excessive initiation fees, or trying to compel employers to pay for workers the company doesn't actually need. Brodie elaborated on some the ways employers can violate the NLRA:

• Employers “can’t engage in threats, or any kind of reprisal related to terms and conditions of employment, or employees’ jobs or their job status” because of union activity.
• Employers “can’t threaten that [they’re] going to close the business or remove work from the business” in response to a union drive.
• Management can’t “question employees about their union sympathies or their views of the union,” or “grant wage increases or otherwise [modify] employee benefits in response to the union activity…or retaliate against [employees] because they’re supporting the union or speaking out in support of the union.”
  

Brodie pointed to the broader strokes of NLRA rules for employers, but there’s certainly more to the NLRA, which has governed much of private-sector US labor law for nearly a century. Companies or unions that violate the NLRA can be found to have engaged in unfair labor practices, which can result in the reinstatement of a wrongfully fired employee or backpay.

Generally speaking however, Brodie explained that once a petition for a union election is filed with the NLRB, the status quo of employment—things like benefits, wages, hours, etc.—are functionally frozen “unless those changes were already in the works, and [the employer can] prove it.” Ultimately, these things should be unchanged until a union contract is ratified, or the campaign fails.

Lessons for HR. A 2019 analysis by the Economic Policy Institute found that employers in the US are charged with violating federal law in four out of ten union election campaigns. Any instructions to deter a union drive is a potential violation of the NRLA.  Meddling in the process could have negative consequences for a company. “Hopefully the HR professional would be telling anyone [who is] saying to engage in multiple [potentially illegal] activities like that, that that could result in a much worse result,” Brodie said. “In other words…you would seriously forfeit your ability to try to stop the organizing by legal means.”

As for Starbucks, at least some of its major investors have expressed concerns that company resources are being spent battling union organizers. Jonas Kron, the chief advocacy officer at Trillium Asset Management told the New York Times: “The company is devoting quite a bit of time and money to putting forward these arguments in front of the NLRB….It doesn’t feel like they’re using investor resources — stakeholder resources — that well.”—SB

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