There are dangers in companies frustrating workers who unionize

One wonders whether rising rumbles and grumbles within the rank and file of new unions are warnings of a volcanic eruption of outrage.

Too many employers’ labor-relations strategy with a startup union is common – delaying and denying workers' rights – and it will take creative concerted activities to make it too costly to remain effective.

Among the challenges facing is whether the Starbucks, Amazon, Trader Joe’s, Apple, Chipotle and REI workers who have unionized over the past two years will get first contracts, or will anti-union employers defy the law.

The first Starbucks store unionized in December 2021 (in Buffalo, New York). Try to dismiss xx actually more than 9,000 baristas at more than 360 stores where workers have voted to unionize.

The first REI store unionized in March 2022 (in Manhattan), followed by seven other REI stores unionizing.

The first Amazon unionization was in April 2022 (a warehouse on Staten Island). Christian Smalls, who led the Amazon Labor Union’s landmark effort to organize 8,300 workers there, said that no progress has been made toward negotiating a first contract and no bargaining sessions have even occurred.

The first Apple Store to unionize (in Towson, Md.) was in June 2022, and corporate arrogance and vanity have stymied progress.

“They’re the most conceited company I’ve ever dealt with,” said Jay Wadleigh, a business representative with the Machinists’ union, which workers voted to join. “They think they have all the answers.”

(However, bargaining has stepped up since Apple hired a Walgreens executive to run negotiations, replacing attorneys from the notorious Seyfarth Shaw law firm. “I honestly don’t think they want to be compared with Starbucks or Amazon,” he said.)

Workers at Trader Joe’s in Hadley, Mass., became the first Trader Joe’s to unionize in July 2022, and now realize that nonunion workers keen on getting a union contract have to first overcome resistance and retaliation, and then try to bargain with defiant companies that boldly break the law rather than bargain.

None has a contract; few are even negotiating.

Research shows none of these examples is an outlier. In a 2009 study of five years of union elections across the United States, Kate Bronfenbrenner, director of labor education research at Cornell University, found that slightly more than half of unionized workplaces (52%) didn’t reach a contract within a year of first unionizing. More than one-third (37%) had no contract after two years, and 30% still had no contract after three years, according to The New Republic.

Delays have gotten worse, too. A Bloomberg Law survey showed that between 2005 and 2007, the average or mean amount of time it took to reach a first contract after unionizing was 364 days, but by 2022, the average length was 565 days.

The strategy is absurd but not insane. There are few legal consequences for violating labor law. Also, there’s an ulterior motive in dragging out negotiations. After a year following workers unionizing, the bargaining unit can legally try to decertify the union they chose.

Companies can wait out the clock.

Maeg Yosef, a Trader Joe’s worker in Hadley, told TNR. “They’re absolutely trying to wear us down.”

In Illinois, the National Labor Relations Board last month upheld the results of a union election at a Portillo’s preparation facility in Addison – where workers voted 28-20 to unionize with the Iron Workers last April – after multiple challenges by the company – which immediately said it planned to appeal once more.

Shelly Ruzicka, a spokesperson for Arise Chicago, an independent Chicago-based workers center that’s been organizing with Portillo’s workers for more than two years, described the new appeal as “yet another stall tactic for the inevitable need to sit down and negotiate with their workers.”

There are options for workers facing a company’s refusal to bargain in good faith, but none is foolproof.  “There’s essentially nothing under labor law that forces employers to bargain,” said Bronfenbrenner, co-author with Tom Juravich, of “Union Tactics Matter: The Impact of Union Tactics on Certification Elections, First Contracts, and Membership Rates” for the George Meany Center for Labor Studies.

Everyday workers’ frustration is building, and possible solutions vary:

* Change the law. For instance, the Protecting the Right to Organize Act, which the House passed in 2021 (but it died in the Senate because it couldn’t get the 60 votes necessary to overcome a GOP filibuster). The PRO Act says that if no first contract is reached within 90 days after negotiations begin, either side can request mediation. If mediation doesn’t succeed within 30 days, they’re to select an arbitration panel that will decide the terms of a two-year first contract.

* The NLRB and General Counsel Jennifer Abruzzo has ruled on multiple Unfair Labor Practice charges, displaying frustration with employer scofflaws. Abruzzo has even proposed eliminating a 1970 decision the board from imposing financial penalties on law-breaking companies. In situations where companies don’t bargain in good faith, she advocates :making employees whole with monetary relief for the lost opportunity to make gains through the collective bargaining process.”

* Go to court. In September, an NLRB judge in Seattle began a trial that could conclude this winter that could determine whether Starbucks failed to bargain in good faith. After the trial began, union organizer Liz Duran said, “It shouldn’t take a year and a half to get to the table just because they don’t like the way that we’ve all decided that we want to bargain with the company.”

* “Corporate campaigns.” Bronfenbrenner said workers “have to find a way that costs the company more not to settle than to settle”—for example, pressuring investors or blocking a company’s expansion plans or interfering with its supply chain. “Unions might have to do all of that,” she told TNR, “before companies come seriously to the table.”

A classic example was the United Farm Workers national grape boycott, a difficult action but one that eventually forced growers to reach a contract in 1970. In fact, after Starbucks workers walked out at more than 200 locations in November and the idea of a boycott was raised, Starbucks wrote to the union in December and claimed it wanted to resume negotiations. However, progress remains elusive.

Clearly, if the pressure continues to increase, more drastic, desperate responses could happen.

No employer is “earthquake proof.”