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Starbucks workers are hitting the limits of American labor law

The coffee chain is benefitting from outdated laws that force stores to unionize separately.

Last year, a Starbucks location in Buffalo, New York, kicked off a long-shot union organizing effort. That sparked a brush-fire union drive at coffee shops across the country, with workers racking up hundreds of victorious elections in early 2022. It was a classic example of how union mobilization tends to happen in surges.

But the rate of new Starbucks union petitions filed with the National Labor Relations Board, or NLRB, has fallen dramatically in the face of a scorched-earth union-busting campaign from Starbucks’ top management. Stores that voted to unionize have been closed, union organizers have been fired, and the company has offered raises to employees who aren’t part of a union. According to the NLRB, the last two actions are illegal, and it has filed a legal complaint to restore wages to unionized workers and to require CEO Howard Schultz to issue a statement explaining his workers’ rights.

American labor law isn’t suited to widely distributed chain companies like Starbucks.

At the risk of stating the obvious, the point of all this is to protect the bloated incomes of top managers and shareholders from the efforts of workers to claim a fair share of the value they create.

It also demonstrates a broader problem in American labor law: It’s not suited to widely distributed chain companies like Starbucks, and it’s largely helpless when employers choose to violate the law. It’s time to give both workers and the NLRB some heavier ammunition.

The National Labor Relations Act of 1935, which created the NRLB, was the brainchild of Sen. Robert Wagner, D-N.Y., perhaps the best friend the working class has ever had in Congress. It ensured employees have a free choice whether or not to join a union, principally by preventing employers from engaging in “unfair labor practices” to stymie organizing.

Though reforms like this were a massive improvement of workers’ rights, the National Labor Relations Act had clear weaknesses. Above all, it set up an individual workplace standard for union elections and included relatively modest penalties for scofflaw employers. If an employer illegally threatens to fire workers who vote to organize, for instance, it generally has to pay only a tiny fine and post a notice in the break room. Individual workplace organizing wasn’t so bad in the days of enormous factories with tens of thousands of employees at one site, but it makes organizing huge chain stores spread all over the place very difficult.

The National Labor Relations Act enabled a huge surge of organizing in the 1930s and ’40s, but thanks to these limitations and others added post-World War II, the fraction of workers in unions plateaued at about a third of the total and declined starting in the 1970s. A whole industry of union-busting consultants evolved to make sure American workers remained flat on their backs. As the union movement decayed and the NLRB became more timid, corporations got used to eating the fines or simply getting away with violating the law.

As historian Erik Loomis writes in his book “A History of America in Ten Strikes,” American labor history is exceptionally violent compared to European standards. Rather than accept a modest reduction in their profits and control as an inevitability, American capitalists have typically responded to union drives with deranged hysteria. Nineteenth-century worker movements were commonly put down with egregious legal trickery or straight-up massacres. Schultz thankfully has nothing on John D. Rockefeller Jr., whose union-busting mercenaries and militia opened fire with machine guns into a worker tent encampment to put down a coal strike, killing four women and 11 children.

This overreaction can be explained in part by the American cult of the entrepreneur. Workers’ being the primary creators of corporate surplus or having a right to a say in the business’ operation strikes directly at the status, ego and self-conception of the “bootstrapping” capitalist, who responds with a slavering frenzy. Hence today’s routine stories of business owners’ vindictively shutting down functional operations rather than accept unionization.

Incidentally, it is an ironic fact that unions aren’t actually any kind of threat to business success — no worker wants to bankrupt his or her own place of employment. On the contrary, during the current labor shortage, unionized UPS has notably outperformed non-union FedEx.

The only way workers have a chance to get a fair share of corporate profits is by banding together in unions.

There is still hope under the current system. NLRB General Counsel Jennifer Abruzzo is quite possibly the most pro-labor agency chief in its history. As Harold Meyerson writes in a profile, Abruzzo is dusting off several bolder legal doctrines from early in the agency’s history and taking more aggressive steps to punish employers who violate the law. Whether she can force Starbucks management to stop violating its employees’ rights will probably determine whether or not the union succeeds in organizing the whole company.

But Abruzzo could still use some help. Two strategies are obvious: First, update the basis for union recognition from the individual workplace. Instead, labor law should transition to “sectoral bargaining.” Under this system, the government requires employers and union representatives in a particular area (like auto manufacturers or retailers) to come together periodically to negotiate a union contract. That agreement is then automatically extended to every worker in the sector. California is moving toward a system like this for fast-food workers.

Second, there must be serious penalties for employers who violate the law. This is a central feature of the PRO Act, along with dramatically speeding union elections and recognition. As it stands, delaying elections and bargaining to give time to harangue workers with anti-union propaganda is one of the principal capitalist union-busting strategies. That bill has stalled in the Senate.

At any rate, it is a basic fact that employers enjoy a gigantic advantage when it comes to dividing up the corporate surplus. The only way workers have a chance to get a fair share of those profits is by banding together in unions. The workers at Starbucks are taking the best advantage they can of the laws on the books — but now they’re being handicapped by those same laws. It is only right and fair that they be given the tools they need to succeed against such overwhelming odds.