Starbucks workers in Buffalo, New York, were the first in the country to vote to form a union. But an underfunded Labor Board meant that labor law went unenforced in Buffalo during their elections.
The National Labor Relations Board filed a sweeping complaint against Starbucks earlier this month, alleging that the company had committed hundreds of labor violations in the Buffalo area.
But the action came six months after Buffalo workers filed their first charge against the company — far longer than the two to three months it took regional labor boards elsewhere to address allegations against Starbucks.
As the Buffalo board investigated, Starbucks escalated from anti-union intimidation to a series of retaliatory firings, according to the allegations in the complaint. The board’s ultimate response came long after most of the area’s votes so far were held, meaning labor law essentially went unenforced while the elections were underway.
The lag was partly due to understaffing: Buffalo staffing levels have been declining for years and key positions remain vacant, leaving the office struggling to keep up with an upswing in union activity. It’s also the result of the scale of Starbucks’ alleged anti-union campaign in Buffalo: regional investigators had to evaluate hundreds of allegations against the company.
The complaint shows that the majority of the stores allegedly affected by some of Starbucks’ illegal tactics in Buffalo have not so far filed for a union — an alleged coercive strategy used to preempt union campaigns that the NLRB has found difficult to fully address.
While the board’s announcement could mark a major turning point for the Starbucks union in New York, workers whom the company allegedly fired in retaliation for union organizing continue to be stuck in limbo. Though the regional NLRB demanded that the workers be reinstated and reimbursed in the new filing, the process of litigating a complaint often takes a year or even several to run its course.
“This isn’t gonna be decided by the board in 2022, let’s put it that way,” said Wilma Liebman, a former NLRB chair under President Barack Obama.
That timeline for reinstatement could compromise the union’s position at the bargaining table. With several unionized stores working toward a contract, fired labor organizers are having to weigh how they can continue to be a part of the process as they take on new jobs to pay the bills.
The circumstances in Buffalo raise the question over whether the regional board will seek an injunction, an aggressive move that would call on a federal court to force Starbucks to provide immediate relief for the workers while the case is being litigated.
That’s a tool that NLRB general counsel Jennifer Abruzzo has encouraged in incidents where an employer is undermining an active union campaign, and one that the NLRB has so far pursued in the case of the Phoenix and Memphis Starbucks complaints.
With the groundbreaking success of Starbucks Workers United and the Amazon Labor Union (ALU), the NLRB’s reaction time has started to see more scrutiny. Testifying before Congress earlier this month, ALU president Christian Smalls raised the sluggishness of the legal process as a tool corporations use to their advantage against incipient labor campaigns.
“They know that breaking the law won’t be resolved during election campaigns,” Smalls said.
Part of the NLRB’s delay is explained by the sheer size of the caseload. The Buffalo complaint compiles twenty-nine filings workers submitted from nearly twenty stores in the region. It details a pattern of surveillance, intimidation, and eventually a series of terminations as the coffee chain flooded the region with a team of corporate managers.
“Starbucks President of North America Rossann Williams led an army of managers — including the 103 listed in the complaint — from around the country into Buffalo to spy, threaten and interfere with workers’ union organization ability,” said Starbucks Workers United in a statement.
Starbucks did not respond to requests for comment, but has said elsewhere that the company “does not agree that the claims have merit, and the complaint’s issuance does not constitute a finding by the NLRB.”
The complaint dates back to August, when the union campaign began in the area. Workers United first filed an unfair labor practice charge alleging that the coffee chain broke the National Labor Relations Act in November, less than a month before two Starbucks stores in Buffalo became the first in the country to successfully unionize.
By the time a second round of Buffalo stores voted to unionize in March, the union had already filed one alleged retaliatory firing. Five more alleged firings and one forced discharge followed over the next two months.
The complaint details violations from at least eighteen Starbucks locations out of a total of about twenty in the Buffalo area. Of those, four stores have conclusively voted in favor of a union, one has voted against, and another is waiting on a contested vote count.
These figures reveal that the majority of stores allegedly affected by Starbucks’ anti-union actions in Buffalo have not yet filed for a union.
“There seems to be a company strategy of blanketing the stores surrounding a unionizing store with anti-union material and other union busting to dissuade them from either nonexistent, nascent, or not-yet-public union efforts,” said SBWU spokesperson Leanne Tory-Murphy.
Some of these stores never got a chance to organize due to closures. The complaint alleges upper management shut down two stores shortly after the union drive began. One of those stores has still not opened back up. Workers United said that two other stores that weren’t included in the complaint have also been closed down for extended periods.
Three more stores have filed for an upcoming union election, which could make the regional board more likely to seek an injunction.
“The Chilling Effect”
The NLRB has acknowledged the risks of delay tactics that Starbucks allegedly used in Buffalo. In a memorandum to her staff in February, Abruzzo, the top NLRB prosecutor, wrote about how employers use coercive tactics like threats, business closures, or withholding or granting benefits to “severely chill organizing campaigns.”
Abruzzo described how unlawful anti-union campaigns often start with intimidation, then intensify to retaliation. She wrote that to live up to NLRB’s mission of protecting worker rights, it must be able to do so at the earliest stages of organizing, before any workers are terminated. That didn’t happen in Buffalo.
Though the Buffalo office did take action this month by filing the complaint, it’s just the first stage in a lengthy procedure that could take years, given the magnitude of the case.
The complaint will likely next go before an administrative law judge for a hearing. After the judge issues a decision, the losing parties can file exceptions — basically an appeal — to the five-member Labor Board in Washington, DC.
“Who knows how long the five-member board takes to rule on the case? It could be there a year. It could be there two years,” said Liebman.
To stop the drawn-out process from obstructing organizing efforts, Abruzzo has urged regional offices to “aggressively seek” injunctions, which had been steadily declining for the past decade until last year.
The board typically seeks injunctive relief when employers have tried to slow union momentum — an outcome that can’t necessarily be reversed through a court order.
This is what Liebman described as the “whole point” of an injunction: “that there isn’t irreparable harm created that cannot really be remedied down the road whenever it is that the NLRB gets around to deciding the case.”
Understaffed and Underbudgeted
Beyond the exhaustive amounts of casework and testimony contained in the complaint, another factor in the Buffalo office’s lagging response is understaffing — a concern that the NLRB has explained as a direct result of insufficient federal funding.
At least two of the office’s leadership positions are vacant: it lacks both a chief legal officer and an assistant to the regional director, a role devoted to expeditiously resolving questions of union representation.
“We are working to fill those vacancies, as well as others, but are hindered by budgetary constraints,” said NLRB spokesperson Kayla Blado. “Our lack of sufficient funding has prevented the agency from filling all of our current vacancies, and with case intake on the rise, has created a significant resource shortage for the NLRB.”
The Biden administration has proposed a 16 percent boost to the NLRB’s funding in fiscal year 2023, but the agency has said that it’s not enough to address years of staffing cuts to regional offices, which are responsible for fieldwork that is crucial to enforcing workers’ rights.
The Buffalo office is one where staffing shortages are not new. Rhonda Ley, who served as the regional director in the Buffalo office from 2009 to 2017, said that the staffing levels there declined over the years that she presided over it.
“It’s been ‘do more with less’ for a long time. As the cost of everything goes up, and that includes salaries and building rents and stuff like that, the NLRB does not have a slush fund. You know, if prices go up, there’s things we gotta do without,” she said.
Workers in Limbo
In spite of the delays, union organizers have reason to be optimistic. Since the region’s first successful union drive, over 60 Starbucks stores across the country have followed suit in voting to join Workers United, and over 250 have petitioned to hold votes.
Several of the fired workers described how the scale and pressure of the alleged anti-union campaign backfired to help them organize their coworkers.
“I think that people just wanted things to go back to what we considered normal. You know, back to the way things were. And I think a lot of people realized that that wasn’t gonna happen either way,” said Cassie Fleischer, one of the first Starbucks union workers of the campaign to be allegedly fired for organizing.
But the pro-union votes are merely the beginning of the process, and the battle for a labor contract is far from over.
Beyond the material impact of losing their jobs, several of the fired workers who had an active role in the union have had to curtail their involvement due to scheduling conflicts. This has impacted their participation in the bargaining process as several of the stores that successfully unionized enter into contract negotiations.
“Unfortunately I can’t attend most of the negotiating meetings or the bargaining meetings,” Fleischer said.
In December, before her store became one of the first two to unionize, Fleischer actively persuaded several coworkers who were on the fence. Following the vote, she helped to orchestrate a walkout over COVID safety and intended to be on the bargaining committee — but starting that month, her hours were cut.
To make up for the lost hours, Fleischer had to get a second job, she said. When she tried to change her Starbucks schedule to accommodate her new gig, she said management refused to work with her and eventually stopped scheduling her at all. In February, the union charged that she had been terminated out of retaliation.
Now her second job prevents her from being at the bargaining table.
Angel Krempa, another worker whom the complaint found to be fired in retaliation for organizing, said she is stuck figuring out how long she can live on unemployment. She is set on helping her unionized store obtain a contract, but she’s considering whether she’ll have to move back in with her parents and suggested that, like Fleischer, she may have to get a new job soon.
“I’m fighting for reinstatement because I wanna fight for this contract. I wanna make sure that there’s a solid, fair contract being fought for at that store. So I’m not gonna just abandon them. But that also means, like, I kind of have to wait and see what’s going on with my case,” Krempa said days before the complaint was released.
Then there are the three Buffalo stores that are still in the process of voting, one of which will get a count next Monday, with the other two still waiting for a vote-count deadline. Nathan Tarnowksi, a worker named in the complaint, was fired from one of these stores. He wants to pitch in but he’s had to get another job, which limits his availability.
“I just moved into an apartment. I moved in the first week of March and I got fired not even a month later. So it was just really rough trying to figure stuff out,” he said.
Tarnowksi said that though he loved his store and coworkers at Starbucks, it’s unlikely that he would seek reinstatement there now that he’s found another job. That’s typical: In 2021, a mere 6 percent of workers who were offered their jobs back after the NLRB ordered companies to reverse retaliatory firings actually accepted.
Others, like Fleischer, still want their jobs back. The delays have not affected her plan to fight for reinstatement, even if a decision takes months or even years to come about.
“We’re all really leaning on each other. I think honestly that we’ll just continue as long as this takes. I think people have a really strong faith in the union and really think that things will turn out okay on the other side, as cheesy as that sounds,” she said.
Republished from New York Focus. Sign up for their newsletter here.