Not Walking the Walk

Have you ever wondered why so many companies who strive for a liberal image go Josef Stalin on unionization attempts?

It's arrogance, hypocrisy, and capitalism.

Wow, that was quick.

Of course there is more than that glib sentence why companies like REI, Trader Joes, and Starbucks refuse to do right by their employees.

Claire Chang and Steve Buckley knew it wasn’t going to be easy. But the two retail workers-turned-union organizers had been heartened by progress made during the first year of contract negotiations with REI, the outdoor gear and apparel chain. By June 2023 — more than a year after Chang and Buckley’s store in Manhattan became the first REI location in the country to unionize — the bargaining committee on which they serve had reached a number of tentative agreements with the company. ​“It seemed like we were building up a rhythm,” says Chang, who has worked at the REI store in SoHo for more than six years.

Then, negotiations quickly went south, Buckley says. REI began working with Morgan Lewis, a management-side law firm known in union circles for hardline, union-busting tactics. The company sent its lawyers to bargaining sessions alone, without any corporate managers, which Buckley saw as part of a new strategy to stretch out negotiations and sap the union’s strength. As of April, there’s been no progress toward a first contract for nearly a year. ​“Blatant disregard and openly hostile negotiations aren’t productive,” Buckley says. The company has ​“continued to get worse and worse because they’re embracing their worst impulses.”

Talk to union members at Trader Joe’s, which (like REI and Starbucks) also has unionized retail stores across the country pushing for a first contract, and you’ll hear similar things. Four Trader Joe’s stores have unionized since July 2022 (and another has filed for union election), 9 REI stores have unionized since March 2022 (with another store election coming later this month) and nearly 400 Starbucks stores have unionized since December 2021. The efforts at these companies, which have all tried to burnish progressive reputations, provide a window into the challenging process of negotiating a first contract more than two years after a wave of unionizing first hit the retail industry.

Trader Joe’s Union (TJU) Vice President Sarah Beth Ryther describes contract negotiations this way: ​“Every single bargaining session is excruciatingly long. Eight hours where almost nothing happens.” The company’s strategy, she says, is: ​“We will waste all of your resources as much as possible, we will dangle tiny little treats that won’t come to fruition.”

So it all ends up in courts, both administrative and federal:

………

In lieu of progress at the bargaining table, the three unions that have kept organizing momentum going after initial historic victories — Trader Joe’s United, Workers United and the Retail, Wholesale and Department Store Union (which REI workers joined) — have spent a lot of time in court.

The National Labor Relations Board (NLRB), the agency charged with enforcing federal labor law, has ruled in the unions’ favor dozens of times on various matters, including illegal retaliatory firings and finding that Starbucks has failed to bargain in good faith. The NLRB has ruled similarly against Amazon, which still refuses to recognize the validity of Amazon Labor Union’s (ALU) sole warehouse union victory in April 2022.

In fact, the NLRB has filed more than 125 complaints against Starbucks. Late in 2023, the Retail, Wholesale and Department Store Union filed 80 unfair labor practice charges against REI with the NLRB, alleging a ​“concerted, multi-pronged union-busting campaign” including retaliatory firings, schedule changes and disciplinary actions. TJU has filed similar charges against the grocery store chain. Starbucks, REI and Trader Joe’s have denied all wrongdoing, although they have settled specific charges. An REI spokesperson said in an email that the company ​“is committed to and engaged in good-faith bargaining.” Starbucks and Trader Joe’s did not respond to emailed questions.

It’s amazing how much — and yet how little — can happen in two years, when it comes to first contract negotiations. It has long been a slow process, and it appears to be lengthening. Economic Policy Institute research found that between 1999 and 2003, 37% of newly unionized workplaces didn’t have a first contract after two years, while 30% didn’t have one after three years. A study of union elections in 2018 found that 63% didn’t reach a first contract in the first year after organizing and 43% still didn’t reach one after two years. That study also concluded that employer obstruction through unfair labor practices served as a major impediment to negotiating a first contract.

Such lengthy delays would likely increase if the courts side with anti-union forces’ latest tactics. In January, Morgan Lewis introduced a new innovation to the corporate anti-union playbook. The firm, which (along with REI) represents Trader’s Joe’s, Amazon and SpaceX, began arguing before the NLRB that the 89-year-old agency’s structure is unconstitutional. The argument, which challenges long-standing legal precedents, claims that the NLRB ​“violates constitutional separation of powers and due process protections by wielding different types of authority in the same case,” Bloomberg Law reported. Starbucks began making a similar argument in February in a case that will head to the Supreme Court for oral argument later this month. If the court rules in favor of Starbucks, the NLRB’s ability to reinstate workers fired during a union campaign could be curtailed.

Part of the problem here is that union busting lawyers are no longer advising employers of their rights.  They are active co-conspirators in breaking the laws.

There is an entire industry to support and instruct people in how to break the law, which needs to be shut down.