Starbucks Fired Union Leaders In Memphis. Will Labor Law Protect The Workers?

Employers normally have little to lose by purging organizers, even when it’s found to be illegal. This high-profile case could be different.
The union representing Starbucks workers has already filed a charge seeking to have the fired employees reinstated.
The union representing Starbucks workers has already filed a charge seeking to have the fired employees reinstated.
via Associated Press

Starbucks fired seven union supporters at a store in Memphis, Tennessee, on Tuesday in what the union has portrayed as a retaliatory purge of the organizing committee. The terminations mark the most significant escalation in the battle between the world’s largest coffee chain and the fast-growing Starbucks Workers United campaign.

The firings made national news, but the reality is that employers fire union activists all the time – whether it’s justified or not. Labor law in the United States gives companies little to lose by ousting organizers. But due to the high profile of the Starbucks campaign, as well as recent changes at the National Labor Relations Board, this case may be different.

Starbucks insists the firings were not retaliatory. Company spokesperson Reggie Borges said the workers violated safety and security protocols by opening the store outside of business hours and allowing nonemployees in without permission. The case revolves at least in part around an interview that union supporters gave a local TV news station after hours inside a Starbucks store.

The union representing the employees, the Service Employees International Union affiliate Workers United, has already filed what’s known as an unfair labor practice charge accusing Starbucks of firing the workers because they were union supporters, which would be illegal. The charge now sits with the NLRB, the federal agency that referees collective bargaining in the private sector.

“A 2009 analysis found that employers discharged workers in about a third of organizing campaigns.”

A case like this would probably boil down to how regularly Starbucks enforces the rules that it claims the workers violated – that is, whether the company has a history of firing others who’ve unlocked the store or brought in nonemployees without managers signing off on it. If not, the union would argue Starbucks fired them out of anti-union animus and used the store policies as a pretext. (Several of the fired workers said in an interview with the labor news organization More Perfect Union that they were not even aware of the rules.)

“I would love to see what the history is of the company enforcing these policies,” Ian Hayes, a lawyer working with the union campaign, told HuffPost.

Even in cases of clear retaliation, winning reinstatement and backpay for lost wages can literally take years.

After a union files its claims, labor board officials have to find merit in them and pursue charges against the company. If a settlement isn’t reached, then the case would go to trial, with witnesses offering testimony for both sides. Then, an administrative law judge would issue a decision and possibly order remedies over the firings.

A recent HuffPost story illustrates just how long that can take. In September 2019, the ready-mix concrete company Cemex fired a truck driver who played a leading role in a Teamsters organizing campaign. The case eventually went to trial and the judge found that the company had broken the law in egregious fashion. He ordered the company to rehire the driver in a December 2021 decision – more than two years after the firing.

But even when the judge calls for reinstatement, the company still has options. It can ask the NLRB’s five-member board to review that decision (Cemex already said it plans to), and later it can seek further review in federal court. All of this occurs before the worker has a right to clock back in.

And in cases where workers do win reinstatement and backpay, the wages they are owed are mitigated — in other words, whatever wages they earned since getting fired are subtracted from what the offending employer owes them.

It’s easy to see why many workers choose to move on with their lives rather than fight to win back their jobs, even if they’re wed to the union cause. It’s also easy to see why so many employers take the legal risk of firing union supporters. A 2009 analysis from Kate Bronfenbrenner, a labor researcher at Cornell University, found that about a third of employers discharged workers during union election campaigns.

But there is a wild card in the Starbucks case: Jennifer Abruzzo, the labor board general counsel that President Joe Biden appointed in 2021. Since taking over last July, Abruzzo has put together an aggressive agenda to strengthen workers’ rights and make it easier to form unions.

That plan includes prioritizing 10(j) injunctions, named for the section of the National Labor Relations Act that covers them. The law enables the NLRB’s general counsel to go to federal court seeking an injunction to force an employer to stop committing unfair labor practices while a case is being reviewed by the board.

Unions want to see these injunctions pursued in what lawyers call “nip-in-the-bud” cases, where employers fire workers expressly to cool off organizing drives. The idea is that not reinstating workers would lead to “irreparable harm” by blowing up an active union campaign.

“Even in cases of clear retaliation, winning reinstatement and backpay for lost wages can literally take years.”

Abruzzo issued a memo calling these injunctions “one of the most important tools available” to the board for enforcing the law. In its filing of the unfair labor practice charge, Workers United specifically asked for an injunction in Memphis.

Board officials may not find one warranted, but if they do, they may be especially likely to pursue it, given the high profile of the Starbucks campaign and the message an injunction could send to the public about workers’ rights. Abruzzo seems keen on educating both employers and workers about what the law is supposed to do.

Getting an injunction still takes time. NLRB officials must do their investigation, find merit in the charge, get Abruzzo’s office on board, seek approval from the five-member board and take the case to federal court. But the process puts reinstatement on a timeline of weeks or months as opposed to years.

The biggest risk to Starbucks may be public relations. Workers winning reinstatement over the firings would put a dent in the company’s claims that it’s running a clean countercampaign. It would also provide a big morale boost to the union effort, with the seven Memphis workers waving to the cameras as they strut back in to work.

The union has won elections at just two stores so far, but it has filed for elections at more than 50 others, and more petitions are popping up every week. Starbucks Workers United is already using the firings to galvanize its campaign. On Wednesday, the group tweeted that workers could support those who were fired in Memphis “by organizing more stores across the nation.”

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