Starbucks allegedly fired, threatened, and surveilled workers in New York, National Labor Relations Board prosecutors said in a complaint filed last week. The agency also has accused the coffee chain—which has seen unions win elections at more than 50 of its stores nationwide—of illegally sacking pro-union workers in Arizona and Tennessee.
Amazon allegedly violated the National Labor Relations Act by holding mandatory anti-union meetings and threatening workers during those gatherings. The NLRB regional director in Brooklyn plans to hit the online retail giant with a formal complaint if the company doesn’t settle, an agency spokeswoman said last week.
Starbucks and Amazon denied any wrongdoing.
1. How do union elections work?
A union can ask the NLRB to run an election after collecting signatures from at least 30% of the workers it seeks to represent. But unions often wait to file what are known as representation petitions with the board until they’ve obtained signed cards from a solid majority of workers saying they want to join.
Union election campaigns typically don’t follow the traditional model of political campaigns, with unions and employers acting like candidates who try to persuade voters.
Instead, unions try to keep the support they’ve already obtained, while employers try to chip away enough votes to win at the ballot box. Employers frequently run anti-union campaigns that require workers to meet one-on-one with supervisors and attend mandatory meetings involving consultants hired to argue against unionization.
2. What are the rules for employers?
The NLRA prohibits interfering with workers’ rights to form unions, which clearly covers actions like firing a worker in retaliation for union organizing. A union also can raise employer misconduct that it didn’t allege as an unfair labor practice to challenge an election defeat, as long as the misconduct made a free election improbable.
The basic do’s and don’ts of anti-union campaigns are summarized in employer circles by the acronyms “TIPS” and “FOE.” Employers can’t threaten, interrogate, promise, or surveil, but can share facts, opinions, and examples.
Yet there isn’t always a clear difference between what’s an illegal threat that, for example, a factory will close because of unionization as opposed to an employer’s opinion on the possibility of factory closure.
Union advocates say employers know how to convey a threatening message without running afoul of the law. And what’s said during one-on-one meetings can turn on a supervisor’s word against a worker’s.
3. What about mandatory meetings?
One of employers’ most potent and commonly used weapons to defeat unions are mandatory meetings, also known as “captive audience meetings.” Under current NLRB precedent, companies are allowed to require their workers to gather and hear their arguments for rejecting unions in pending elections.
Mandatory meetings are inherently coercive and should be illegal, NLRB General Counsel Jennifer Abruzzo has said.
If the agency’s Brooklyn regional director issues a complaint against Amazon over the company’s mandatory meetings, that case could be the vehicle for overturning board law that permits such compulsory gatherings.
4. What happens when employers break the law?
The NLRB can order an employer to bargain immediately with a union without a vote when the unfair labor practices are so egregious that they’ve essentially made a fair election impossible. The board rarely issues such orders.
The more common remedy is a rerun election. Unions have won 63.7% of do-over representation elections held since January 2017, according to Bloomberg Law’s NLRB Elections data. During that period, unions won 72.7% of first-time representation elections.
But Abruzzo has said existing remedies don’t do enough to discourage unlawful employer conduct. In an effort to clean up elections, NLRB prosecutors are litigating a case that asks the board to revive a type of order that would let the board force an employer that violates the law to bargain with a union based on a majority of signed cards, rather than a union win at the ballot box.
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