For nascent unions, the fight for a first contract is often a lengthy one

More than 380 Starbucks locations and 9,000 employees across the country have unionized since a store in Buffalo became the coffee giant’s first branch to join Starbucks Workers United in December 2021. None of them have gotten a contract so far.

Despite successful union campaigns at national companies including Amazon, Apple and Trader Joe’s over the last two years, none of those nascent unions have been able to settle a collective bargaining agreement. They’re not alone: just 36 percent of new unions reach their first labor agreement within a year of unionizing, according to research by Kate Bronfenbrenner, the director of labor education research at Cornell University's School of Industrial and Labor Relations. Within three years, 66 percent of unions manage to secure a first contract.

For Steven Buckley, a sales specialist who has worked at the REI store in Soho since September 2021, at first, their union victory in March of the following year created a sense of exuberance and of community among his colleagues. But that feeling quickly changed when the self-styled progressive company’s alleged anti-union tactics — which Buckley said had abated after the workers’ victory — began again.  

In November, the union filed 80 unfair labor-practice complaints with the National Labor Relations Board on behalf of workers at the unionized stores. The grievances allege that the company has unilaterally changed working conditions, including by reducing workers’ hours, retaliated against pro-union employees and delayed bargaining on their first contract. Buckley noted that workers at his store are no longer eligible to participate in the outdoor goods company’s profit sharing plan, “which the company does everywhere but here.” 

'A question of power'

Eight out of REI’s 180 stores have joined the United Food and Commercial Workers International Union and Retail, Wholesale and Department Store Union. REI is bargaining separately with each store.

Buckley, who is also part of the union’s bargaining committee for the Soho branch, explained that the union had started making progress at the bargaining table, but then REI switched legal counsel by bringing on Morgan Lewis, the self-described “union-avoidance” law firm known for representing Amazon in its fight against with labor organizers. Since then, negotiations have stalled, according to the REI Union.

“I don’t think we’ve reached a single tentative agreement, and that’s part of the 80 bad-faith bargaining clauses we’ve filed with the NLRB. It’s incredibly frustrating,” Buckley told The Chief. “They’re counting on the fact that the NLRB is overrun and it’ll be so long until we can get legal recourse they can just break the law.” 

First contracts, Buckley stated, “aren’t really a question of bargaining — they’re a question of power.” 

In a statement, REI said that it “disagrees with the union’s contentions and will continue to fight their allegations. We are committed and engaged in good-faith bargaining with stores that have chosen union representation and will continue to participate fully in the negotiating process.”

The REI retail store in Manhattan’s Soho neighborhood. Ron Adar/SOPA Images/Sipa USA via AP Images

Although current labor law requires employers to bargain in good faith, it doesn't actually require businesses to reach a collective bargaining agreement, let alone quickly.

“The unions don’t have any way of getting the NLRB or the courts to beat back employers’ resistance to agreeing to a first contract. The law just doesn’t require a first agreement,” said Harry Katz, the Jack Sheinkman Professor of Collective Bargaining at Cornell ILR. “The NLRB can make a ruling that management hasn’t bargained in good faith, but as long as the employer shows they’ve listened, not even that they’ve compromised,” it’s difficult to prove, he added.

Legislation has been proposed to strengthen workers’ ability to obtain contracts. The Protecting the Right to Organize Act, or PRO Act, would require employers whose workers have recently unionized to meet at the bargaining table no more than 10 days following a request for collective bargaining, and would also allow workers or their employers to request mediation if an agreement hasn’t been reached more than 90 days after bargaining has commenced.

But the bill faces an uphill battle to become law: it passed the House of Representatives in 2021 but died in the Senate. The current version passed in the Senate Labor Committee and has been referred to the House Committee on Education and the Workforce.

“Even some moderate Democrats weren’t willing to go along with the PRO Act,” Katz told The Chief. “The business community would fight it tooth and nail in the current political climate.”

Changes proposed

Ellen Dichner, a distinguished lecturer in labor studies at CUNY School of Labor and Urban Studies, who was chief counsel to the chairman of the NLRB during the Obama administration, noted that the board has recently implemented changes to make reaching a contract a reality for more workers.

“The NLRB issued a decision a couple of months ago that if a union requests recognition but an employer declines and then commits an unfair labor practice, the board can issue a bargaining order — that can speed up the bargaining process,” she told The Chief. “But the remedy is so weak, it’s truly meaningless.… If you don’t get a union contract within a year, it’s extremely demoralizing for the workers.”

Dichner also noted that the board is looking to overturn the 1970 Ex-Cell-O case, which limited the NLRB’s powers to impose financial penalties on employers that refuse to come to the bargaining table. 

“One of the things being looked at now are stronger punishments for employers that are refusing to bargain. That would be a significant remedy,” she said, although she indicated that imposing financial penalties would likely not have much impact on powerful companies such as Amazon and Starbucks.

The NLRB has found that Starbucks has violated federal labor laws in its fight against the union’s efforts more than 40 times. Last month, the NLRB urged Starbucks to reopen 23 stores that employees alleged were closed due to union activity. And two weeks ago, an administrative law judge at the NLRB issued the company a cease-and-desist order. “It appears that in many instances violating the National Labor Relations Act has become standard operating procedure for Starbucks,” the order notes. 

But in an about-face, a Starbucks executive vice president, Sara Kelly, sent a letter last month to Lynne Fox, the president of Workers United, stating the company’s commitment to reach a contract this year. “We will set as an ambition and hopeful goal the completion of bargaining and the ratification of contracts in 2024,” Kelly wrote her counterpart Dec. 8.

Fox said that the union would review the letter, adding, “Anything that moves bargaining forward in a positive way is most welcome.”

Despite the drawn-out process, Buckley believed that he and his colleagues at REI would prevail in their contract push. “We will get a first contract, and we’ll get one when workers force REI to realize there’s no choice,” he said.

clewis@thechiefleader.com

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